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I
*..
State Trials.
VOL. XI.
O ' r
COMPLET£?:MeO\i4LECTION
• •_ . • • •
State Trials
AND
PROCEEDINGS FOR HIGH TREASON AND OTHER
CRIMES ANP MISDEMEANORS
FBOM THe
EARUEST PERIOD TO THE PRESENT TIME,
WITH KOTES AJfD OTHER ILLUSTRATIOJTS
COMPILED BY
T. B. HOWELL, Esq. F.R.S. F.S.A.
VOL. XI.
A.D. 1680—1688.
LONDON:
PRINTED BY T. C HANSARD, PETERBOROUOH-OOUBT, FLBET-STRBET:
FOR LONGMAN, HUBST, REE8, ORME, & CO. } J. RICHARDSON ; BLACK,
PARRY, & KINGSBURY; J. HATCHARD; E. LLOYD; J. BUDD;
J. FAULDER; J. BOOKER ; CRADOCK & JOY ; E. JSFFEIlY;
}. BOOTH; AND T. C. HANSARD.
laii.
1 ''>•'>••'
TABLE OF CONTENTS
TO
VOLUME XL
%♦ The new ArHcles are mariei [N.]
Pag€
J25. PftOCBEMNes ^g^ltat HERlWkS OP tfifi SfitftEOF FIFE,
for Absetrcfe from the Kitig's Host, a. d. IBSO. t^ow first printed
from the Records of Justiciary in Edinburgh] [N.] ^ ;.••« 1
826. ProoeediBgs against THE 00{U90NS, of Eartestooki, ^itA xStb^ftn, for
Treason, a. d. 1680. [Now first printed from the Records of Jus-
ticiary in,l^cot1and] [N.] ...•*. ^ 46
3S7. Proceedings against JOHN Lord BARGENY, for Treason, a. d.
1680. [Now frrst printed from the Records of Joi(ticiary in iScot*
land] [N.) : 6S
926. Vrocetidings upon a Proceis cff Bn-cfr, rftkad «gainit KkLEXANDER
BLAIR and eihen, ibr the Mqnktal «€ Jmntii Didc Md others,
indicted for Treason and Rebellion, a« d. 168L. [Now first
printed frotn'tha Recofdn tf Jiirfliiehry ki i^inbtirgh'] fN.] •••••• tB
i^. Proceedings against CHARLES Earl of LAUDERDALE. RICHARD
Lord MAITLANDUslSoti, and others, for Offlsial Maltvmlbns ^
respeciiiig the Boyal Mint of Scotoid^ a. t. l€6a«l6ffS. [Now
first printed from tiie Prify Cdmcal Books ait XdinbQr|;hij .[N.]... Ibt
330. Pffooeedtnga agabst SEVERAL RffifiDHB. OF iAtWSKSOHCE,
tot Treaaon, a. »• 1081. (NM^itt pniled(ftt>tn ill* Secoids of
Justiciary at £dini>«rgh|| £N.j •%v»4««M«<«««M*«*^«*««v»tf#««v»^*«««A..«« 9i6
TABLE OF €ONTBNTO.
Page
SSI. The Trial of the Lady AUCE LTSLE, at WintOB, for High Tlreasoo,
A. o. 1685 298
m. Trial! of JOHN FERNLEY, WttLIAM RING, EUZ. GAUNT,
and HENRY CORNISH, esq. at the Old Bailey, for High
TreaioD, a.d. 1685 382
REMARKS upon Mr. CORNISH'S Trial, by Sir John Hawlbs,
Solicitor-General in the Reign of King William the Third ••• 455
333. The Trial of WILLIAM DISNEY, esq. by the King's Special Com-.
mission of Oyer and Terminer, held at the Marshalsea in Soath-
wark, for High Treason, a. d. 1685 468
334. The Trial of CHARLES BATEMAN, Surgeon, at the Old Bailey,
for High Treason, a. d. 1685 .....•..•• 467
REMARKS on the Trial of Mr. CHARLES BATEMAN.
By Sir Jobm Hawlbs, Solicitor-General In the Reign of King
William the Third * 474
335. The Trial of JOHN HAMPDEN", esq. at the Old Bailey, for High
Treason, a. d. 1685 • ., , 479
336. Proceedings aga'mst RICHARD BAXTER, Clerk, for a seditious
Libel, at Gaildhall, before Ix>rd Chief Justice Jeffreys, a. d. 1685 49/
337. The Trial of ROBERT FRANCES, Gent, for the Murder of Thomas
Dangerfield, at Jastice-Hall in the Old-Bailey, before the Right
Hon. Sir James Smith, knt Lord-Mayor of London, Sir Thomas
Jenner, knt. Recorder of the said City, and one of his Majesty's
SerjeanU at Law, and <»tbers his Majesty's Justices, a. d. 1685 ...
338. The Trial of HENRY Lord DELAMERE, in the Court of the Lord
High Steward, at Westminster, for High Treason, a. d. I686
339. Proceedings in Parliament against THOMAS Earl of DANBY, Lor
High TVeasorer of England, upon an Impeachment of High TVe.
son, and other High-Crimet and Misdemeanors, a. d. 1678-1685
840. PxM»edings against RICHARD RUMBOLD, for High.Trea»
A. D. 1685. iNow fint priolwl fw>« the Records of Priry Ow
andConctiof.JiiiticiaKy.atSdinbii^^J C^O ••*« •••«»•«.
TABLE OF CONTENm
345.
347.
348.
349.
P^
341. Proctedings against THOMAS ARCHER, ALEXANDER SHEILS,
and others^ for Treason, a. d, ]6S5. [Now firtt published from
the Records of Justiciary in Edinburgh] [N.] .,., „ ggQ
342. Proceedings agaiiist SEVERAL PERSONS OF GALLOWAY, for
Treajion, a. d, 1<5b2. [Now first printed from the Records of Jus-
ticiary at Edinburgh] [N.] „,....»...*..,.., ........*. «,..«. 910
343. Proceedings against JOHN SEMPLE, JOHN WATT, and GA-
BRIEL THOMPSON, for Treason, a, i>. 1614-, [Now first pub-
lished from the Records of Justiciary at Edinburgh] [N.] „„ 950
Proceedings against DENHOLME of Westshiels, and othert, for
Treason and Reset of Traitors, a. n. J 685. [Now first printed
from ihe Records of Justiciary at Edinburgh] [N,] gfff
Trial of DAVID MOWBRAY, for a Tumult within Burgh, a. o,
IGB^, [Now first printed from the Records of Justiciary at Edin-
burgh] [N.].. 1003
Trial of ALEXANDER KEITH, for Sedition, Mutiny, and Tumult,
m Burgh, a. d. \f>U6. [Now first printed from the Records of
Justiciary at Edinburgh] [N.] «•«». 1018
Proceedings against JAMES sometime Duke of BUCCLEUGIl (and
MONMOUTH). Sir JAMES DALRYMPLE of STAIR, AN-
DREW FLETCHER of Salioun, and others, for High Treason
and Rtbellion, a. 0. ia85-l6S6. [Now first printed from the
Records of Justiciary in Edinburgh] [R] 1023
Proceedings against GILBERT BURNET, D. D* afierwards Bi.shop
of Salisbury, for High Treason, a. d. 1CJ87 [N.) •. 1I03
Proceedings against Dr. HENRY COMPTON, Lord Bishop of
^^^ London, in the Council-Chamber at Whitehall, by the Lords Corn-
^^m miisioners appointed by his Majesty to innpect Ecclesiastical
^^B Afiiiirs, for not suspending Dr. John Sharp, Rector of St. Giles's,
^P A. D. 1686 1123
r 350. T
The Trial of Sir EDWARD HALES, barf, for neglecting to take the
Oaths of Supremacy and Allegiance; with his Plea thereto, upon
the King's diipens'mg with the Stat. 25 Car. 2, and the Opinion of
the Judges thereupon, A. p. 1635 ••.«t**».4*«**»**«* # U6S
TABLE OF CONTENTS.
Pagf
SSI. The IVial of the Lady ALICE LTSLE^ at Winton, for High TreaioD,
A. D. 1685 SSi
332. Trials of JOHN FERNLEY, WILUAM RING, EUZ. GAUNT,
and HENRY CORNISH, esq. at the Old Bailey, for High
Treason, a.d. 16B5 S8S
REMARKS upon Mr. CORNISH'S Trial, by Sir John Hawlbs,
Solicitor-General in the Reign of King William the Third ••• 45!
533. The Trial of WILLIAM DISNEY, esq. by the King's Special Coai->
mission of Oyer and Terminer, held at the Marshalsea in Sooth-
wark, for High Treason, a.d. 1685 iSt
534. The Trial of CHARLES BATEMAN, Surgeon, at the Old Bailey,
for High Treason, a. d. 1685 ^ 46:
REMARKS on the Trial of Mr. CHARLES BATEMAN.
By Sir John Hawlbs, Solicitor-General in the Reign of King
William the Third # 47'
3S5. The Trial of JOHN HAMPDEN', esq. at the Old Bailey, for High
Treason, a.d. 1685 47j
SS6. Proceedings against RICHARD BAXTER, Clerk, for a seditious
Libel, at Guildhall, before Lord Chief Justice Jefireys, a. d. 1685 49^
S37. The Trial of ROBERT FRANCES, Gent, for the Murder of Thomas
Dangerfield, at Justice-Hall in the Old-Bailey, before the Right
Hon. Sir James Smith, knt. liOrd-Mayor of London, Sir Thomas
Jenner, knt Recorder of the said City, and one of his Majesty's
Serjeants at Law, and others his Majesty's Justices, a. d. 1685 ... 50;
SS8. The Trial of HENRY Lord DELAMERE, in the Court of the Lord
High Steward, at Westminster, for High Treason, a. d. 1686 51<
859. Proceedings in Pariiament against THOMAS Eari of DANBY, Lord
High IVeasurer of England, upon an Impeachment of High IVea*
son, and other High-Crimes and Misdemeanors, a. d. 1678-1685 59!
840. Proceedings against RICHARD RUMBOLD, for High-Treaaon,
A. n. 1685. £Now firsfc printed from the Records of Privy CooDcil
andCoortof Justicisuy.atJBdiabarghJ [N.] ••^•••.•.•••«M«»M«k.» 87
TABLE OF CONTENTS.
Pag$
341. Proctediogs agaimt THOMAS ARCBER. ALEXANDER SHEILS,
and others, for Treason^ a. d, 1685* [Now first published from
the Records of J uiiiciary in Edinburgh] [N.] ggo
12. Proceedings agamst SEVERAL PERSONS OF GALLOWAY, for
TreasoAj a. d, l6SSf. [Now first printed from the Records of Jus-
«v ticiary at Edinburgh] [N.] , 9|0
3*3. Proceedings against JOHN SEMPLE, JOHN WATT, and GA-
BRIEL THOMPSON, for Treason, a. d. 1614. [Now first pub*
lished from the Records of Justiciary at Edinburgh] [N*] 950
314* Proceedings against DEN HOLME of Westshiels, and others, for
Treason and Reset of Traitors, a« n. 1685* [Now fir^t printed
from the Records of Justiciary at Edinburgh] [N.] ggff
345. Trial of DAVID MOWBRAY, for a Tumult within Burgh, a. o.
)6B6. [Now first printed from tlie Records of Justiciary at Edin-
burgh] [N.] 1003
Trial of ALEXANDER KEITH, for Sedition, Mutiny, and Tumult.
m Burgh, a. d. 16H(}. [Now first printed from the Records of
Justiciary at Edinburgh] [N.] IQ\%
Proceedings against JAMES sometime Duke of BUCCLEUGH (and
MONMOUTH), Sir JAMES DALRYMPLE of STAIR, AN-
DREW FLETCHER of Salioun, and others, for High Treason
and Rebellion, a. i>. 1685-16S6. [Now first printed from the
Records of Justiciary in Edinburgh] [N.] •« .«.. *.,» 1033
348. Proceedings against GILBERT BURNET, D. D. afterwards Bishop
of Salisbury, for High Treason, a. o* J687 [N] 1103
349. Proceedings against Dr. HENRY COMPTON, Lord Bishop of
London^ in the Council-Chamber at Whitehall, by the Lords Ce^m-
missioners appointed by his Majesty to inspect Ecclesiastical
Afiairs, for not suspending Dr, John Sharp, Rector of St. Giles's,
A. D. I6S6-... I IfS
360. The Trial of Sir EDWARD HALES^ barl. for neglecting to take the
Oaths of Supremacy and Allegiance; with his Plea thereto^ upon
the King's diipens'mg with the StaL 23 Car. Q^ and the Opinion of
the Judges thereupon, A. D. \^m «**o. ...*•«.. 1160
fABLB OF COKlCKia
351. ProcMfiBgt fBin^ Mr. JOHN PBACHSLt, Vic«4aMMltaf^ tnil
the UNIVBHSmr OP CAMBRIDGE, fcr sot admitting AHian
Fraiicit, » Benedictime Monk, to the Dogroo of Maiter of Artt,
April and May, a.d« 1087 131
S59. The ProeeediBga agalnft Mn SAMUEL JOBNSOI«, who was tried
at the King^srBeneh Bar, Westmiialec^ for High Mbdemeaiion
(and foand gailt^ of writing and pablishing two Beditions and
•candalooi Libek against the Gorernment) a.d. i0S6 139!
3S» The Cape of WILLIAM Barl of DEVONSHIRB, oa an Information
in the King's Bench, for assaalting Colonel Calpepper in the
Ktng'sPal»ce> A.9. 1687 139^
a&i The Trial of PHIUF STANDSFIELD, Soato Sir James Standifield,
of New-Milns in Scotland, for High Treason, the Marder of his
Father, and other Crimes libelled against him, a. d. 168« 137]
1
C O B B E T T'S
COMPLETE COLLECTION
OF
State Trials.
325. Proceedings against Heritors of the Shire of Fife, for Al
sence from the King's Host:* 3'i Charles 11. a-d. Ifi80|
[Now first priuted from the Records of Justiciary in Edii
burgli,]
Clru JusTtcutuc, S.D.N, ^' I ill
Pneiorio lltirfjri tk* Kilinbu iiiio
icrtif» die metJNi>i Fehrtiarii, 1-. l\ jjli' ho-
Icenzietie'^IVhet JuMir 1*"m,
Thomain Wallace do ^ .iriie
ClericuiOi Jflrf>ltiuni I'uti,. ni iMutoiin,
Ri»i>rHmti Nairn iJe Si nM I lunL Jliivid«'«ii
BaUbur «lc roiret, Daviili^'in I'nkonur de
NewtoiJti, ol lloi^* runi lfo^rt>^^,» Iliirrairssj
Regis.
Curm k'giltiitir aiiiiuiutu,
■ /ftiv* <»r Bnlliousio*
Habfft fiitmUton, of KttbracUmout
' JoTHts Metritis of Cii&s'iufmy ,
jiierantkr Durhamt^ of Liirgp. ,
Captain Gifiam Murray ^ oCPItkeme^
Charifii CimtiH, orCorstoun.
David fiakant^uiN^ of 1 bat llk»
Aternntfer A'winir, of Nuriif'uunli
Jumci YoMn4(, of Kirktfiun*
^ Wodww do
lecuUon. Him
ccerliitt'- "
theK
M V
Horn
oiir i nil, vfhicli till
iniikr i: i*alti'd U» the
kiff^N iiit^L a t'rtat tnmt*j and ad tfrrorem
ptt^rf puniHlinu'iil'i arc by thewr kwg knit to
It ; but t queiiiioal if for ihefe hnodredt ar
VOL. XL
Me,Af' V;..-. ' '" Litlefreirioum.
John J.
GtVrgt ,.r, ^ ,- . .l„
8ir Jaf«^,* :ihtctntr^ ot Kinnaird*
J< ) A « J 1 1 uu It , of 1 n r! n lert» ie.
Brown ^ of Phinnmnt.
— — Murrtt}/,, of pjtkH''li!e.
Jfimt* Kynnintnvnd, ot that Hk,
J time* U^et/mcM, oi*ii\tt\i^\*y\in,
Robert Khttuil^ of Uv
iy\v Jitrm,4 litwtf«irmt\ i*».
John Litid^iaif^ of Do^\liilL
David Bcatan^ of Dandon.
WaiUr Latif^ ol' Bnmtouiu
— Balhntr^ of Baibi rue-
Sir Joh''''- rr,;^ of FonUfif
Rohcri <!mtj of WmMlfeild.
Ihnry .:..,.,...., : urtioner^ ol'lwia{^borfi,
Mr, John MitcheU^ of Babaixlie.
Mr, Charier WardifiJiCj of i«gti».
InDYTED and accused, Tliat wlier, no,
wUli&iamUojf be tbe laHes and acts of pnrUa-
meutsof tbis kincfdome and con^ttunt practoit^
iberaf, the reinainiii^ aod abiding frae liia
hundred and (lAv years, tbey were put in exe-
cution, iiU liovt they aie advanced hhhu handl#
a^iiiat a great niuuy pcraons, vrbo from dif-
fcreni roaaoiis came uot out ag-aint^t the U'eat
cotintry army .
^* ^!'i tier* were laid last y*»ar for llim pro*
«f mition ; and, itriU^NH''n. 1 Itf't tluMiii to thia
jdace» and so ^ Atter
tbc rising al k ir ^vas.
made about bcrihir> ultini-j upon th
army; but now on, i^j resolve up(
cottfves : and i^Uvu tboy Jiud
(
5] 32 CHARLES II.
in4jf^ti>'« host ftnd royall stmodart be bve
c.Tyitie^ and KT«Hia piqukiUe; sad be tfce
4ih Act, 1st ParliaiD^t kiog Jamft 1, it u
^tfttijt an<) onJaioedt that ifaoy doobejs to
\«li:it uas to arise from the estates of sach as
had been personallv concemed in the imingj
would not answer tneir expectatioof, a more
genera] oppression of gentlemen and heritors is
resolved upon. It was presumed, that sach
who did not heartily join the army, were well
affected to Presbyterians, and no opportunity
of brinsring such to trouble was left, especially
when it was like to brinsf in lanfe sums of
money. Thus I ftnd 6y tSe council -registers,
Noycniber 6, < That, at the dvsire of the lords
* of justiciary, a committee is named to Meet
* with them, the chancellor, earls of Argyle,
* Alurray, Gleucaim, the president, treasurer
* depute, register, and advocate, and consider
< what shall be the punishment of absents from
< the king's host. November 8. Their opinion
* is re|>orted, that the heritors and freeholders
' {guilty, should be fined ; the most guilty not
* above two years valued rent, and the least in
* a fourth paVt of their rent : that those who
' are fined in the least degree, be appointed to
* take the oath of allegiance and declaration,
' and, if they refuse, that they be fined in the
' hi*; best rank.' The council approve this
report. Thus no small pcrHecntion for cou-
scieucc sake, is mixed with thi<* civil kind of
crime. Those proposals are transmitted in a
letter to LawderdaJe, dated,
<< Edinburgh, November 11, 1679.
<' May it pleaae your grace ;
" The just abhorrence we have of the lnht
rebellion, and the too just fears that the same
principles may occasion the same distempers,
do obhge as to inform his majesty by your
grace, that if these who went m»t V} a«ii<it hu
m:^estj against these rebels, or fleMTtefl the
king's host, be not paniabed, we CMnnfA pro-
miie hifl majesty wdl hate any prtprirtir/nal
fcrce against any fntnra issurretticnfl, «inre
«« ficC by oqr great experience, that tbew
who «eR at daily expcnce and hazard m that
cs^iboMi^ are nneh dbcooraged, when tfi^-v
^ttc^ben who flayed at Wwie, or d<Mrt#-fl, j
^-^-^ MthiDg ; and that soch at M^yttl at j
Proeeedingi agaiiui
[«
Us
yy**wi a priadpleoT mMnMtem to hi*
^j^yy^CHMMl, d» trett the doifffiln#^
and iin-
yoor grac^
tiMlweanarevdvH
mwy ikmt f^bMen^ m
te Urn Mi'nhiuiyl tlMiId be
brnigM4
inforce the king against nottor rebells agaiimt
hia person, when they be required be tM king
and commandit, they shall be chalenged be the
king as fkvourers of sick rebellers ; and be the
offenders have been punished by forfeitures^
confiscations, and banishment Theie our re-
solutions, though taken and formed afler much
serious debate, are sul^ected with all dutiful
respect to hia majesty's royal consideration, by
«( Your grace's most humble SSenrant,
«< Rothes, Cancel. I. P. D.'*
« The niiotiona for this heavy oppression of
midtitudes, we see, caniefrom Edinburgh, and
were fallen in with at London. AccordinglTf
I find a letter from the king upon this son-
ject, recordedin the justidary-registers, of the
date,
" C. R. " Whitehall, Nor. 18, 1629.
'< Whereas, albeit by express law, the de-
serters from our host he punishable by death,
yet we are graciously pleased hereby to allow
yon to proceed against them in the same way,
and to the same pains and punishments as yoa
are resolved to proceed against the guiltiest of
such as did not come to our host : for doing
whereof this shall he your warrant.
" Lawoerdalb.'*
<* By the proclamation issued out during the
rising, tlie absents from the host wei*e to be
punished as deserters of it ; but that being
death by some antiquated laws, and it not
being blood but iTioney, a good many alK>ut
Edinburgh were at this time wanting. This
le ter was procured with relation to deserters,
who, I suppose, were not many, in the ordi-
nary sense of the word ; and this was a preface
to what followed as to the absents.
'< I'hat same day, a letter is writ to the couo
cil, approving the projposal in ail points, whic
they make in theirs of the 11th, and so it need
not lie insert here. When they are thus war
ranted to begin their finings upon this hea
they go rouudly to work, and letters are v
to the sheriffs m each shire, that they send
the h*x>ks of valuation, or attested copies
tliem U> Edinburgh ; and the officers of '
army are appointed to send in lists of the
riu>r% in each shire, who did not attend
kir^'« ho«t.
" io fiecerober and January, citatior
mtWrtsA X/» be given to some handreds c
ti^'m^^i, fi#:rit/w*,and freeholders, by th«
eiary • it t/y* vime time before the listi
be made up, %w\ the witnesses condesi
on, arid th* rraiisgers themselves seem
be ffiSiy ftgTMd, and se? erals were for nr
iywrsM» g«^4km#tks exctises being fow
f^ ih^tm hiffitlj fswnnMt for not r
iw<HfttT<, arid t/M^ttt^ t// the host
f Mwt party j^*?a«kd.
" Turn, r^titfy ^1J, • great mi
Asraf/e g^.fWri#»», fmitnnf «nd ft
ga»n«iM b^^^ t^ jMtidaor fc
JLtm tlie t^^-* ^ receive tbetr r
the ft/eihire tferitors,
5Tth Act, IStli ParlLament king^ James $, U b
onlainedf that all maner of men that ban land
or goods be rcadie horsed and g;eared eOer ihe
facuftie of his lands and goods lor the defence
of the realint at the comniandTnenl of the
king^s letters, and whoso liets not, he shall he
jlUDisbed ID his person and goods, espectallie
when they are reqiij^red therto be his innjes-
tie's proclamation for subdueing^ of traiterous
|iloyed by the gentlemen, and their deftences
are longf and pleadings wery l&r<(e upoti the
mattsr in general, and the uarticnlur oirctitn-
stances of the pannels. The advocate give«
hirge replies, and enforces hh rcawmings with
the freight of the letter from the king to the
council upon this head, dated November 18,
which \tas noticed just now,
** This argument from a resolution in coun-
ctl, backed vrith rojal approbation^ no douht
was uuansv^crable ; ami so the lords give sen-
tence against the gentlemen. 1 cannot insert
all who were fined now and atVrwards ; only,
for A taste at this time, James Young of Kirk-
loan is iined in 1870/. Hcots, of Fit-
lochic in 700/* Alexander Durham of Largo
fn 1830/. Darid Bakanquel of that ilk in 50Ql
Alexander Nairn ol' Saml'urd in 294 /. George
Moncrief of Re* lie in 300/. James VVeeras in
Glencoffitoim in 173/. and muUiiudes of others,
** At other diets of the Justiciary in Fc-
brtiary, 1 find vast numbers ot gentlemen and
heritors in the shires of Lothian, the IVlerse,
and other places, pannellcd, and more than a
hutidred of them fined in very considerable
sums ; and, fowanls the t-nd of March, the
Lords are taktn up in th<? same work : sen-
tences are pa^tugamstasmany as in February,
if not more, and diiichargesare produced of the
paymc^ntof former tiues, tiomeof them several
thi>usand jiouuds.
*• Upon the ^6th of July, this matter of ab-
sence from the king's ho«t» is taken oirt of the
hands of the joi»tioi»ry, r.nd put in the hands of
the council* Thih was a more arbitrary court,
and ^dve not themselves the trouble of lawyers,
ftod iegaJ del«nces* That day, 1 tiud the ad-
focafe produced a letter from the king, of
the dat«,
«« C* R. Windsor, Jane 1, 1680.
** Right trosty, Bcc. We are sensible of the
lall etfects that have followed by the trial of
who have beeii absent froni our li»jst,
the justiciary ; and hemg nilbnncd that
summons are isi^ed out to cite many others
through the shires for that crime, it h now our
will nsd pleasure, that they be proceedeil
against, not criminally, but by Way of finnig,
hi lo the degrees of tneir gutH, uotad*
II olous excuses for ubsaiice or deser*
tJoni HiMcli we look upon a^i preparatives of
tatfurona consequence to our service, Wv
icure nonp f -""-t** T-*- ^n- troubled with trials
or cttntiun r. , pted w ho are known
t0b«iu>ion(j^'*j t,.,^i.^.,4^^ij toour government
id Hate : tor though we ate at this
A. D. IfigO. [6
and sedltioits rebells, who hade most trailer
ou!ilie assumed and taken the hoUltii " ' eF T
his niajrstie's law^ and act« ot |i
at the marcal cmce ot the hur^he *»t ii. m
glen, tipon the iwentJe-nynth f>f May hsl, M
day appoinie^l for nm? sidt-nine nnniver^iary
thanksgiving (W his niai»^stii'*s rest no ration td
the royal I government id' thli kingdonie, and
who hade most tressonablic eonvocat and as-
time gracioofily pleased to excuse them from
criminal inocejis, yet we will tUft suffer absf u!i
and deserters to escape without some puiiisti*
ment by way of fining* which we desire yoi
to signify to our justice con rt Ho we bid
you, 6cc.
*^ How it came to pa$s that such a letter «s
this, of the date, Jutie 1. was not iutimiitc*d,
till July 26, I shall not enriuircs rt-rtainly
someboily or other found their advanlJige by
it. This letter is intimated and rrcordeil in the
criminal books, and ftll processes in dependence
before them are dotted, and in their rooin
succeed the processes for forfeiture of life
af^r Airs- moss.
*♦ When this matter comes before the conn-
cil, they go closely to work, and their regiMers
fbr some months are mostly taken up with
those processes. Many hnnilreds are cited
before them, the diets of some aie continued,
others are deserted (not without composjtioiis
and money jn-ivalely given.) Mulliiuilea are
fined in absence, and some det^lavtd fugitive.
I To enter upon particulars would swtfll this
I chapter too much. Let me give only a few
tnstauces, < July 13, Dundaa uf Borthwick is
* tined in a year*s rent. August 1, the laird
' of Riddel's excuses tor absence not sustained,
* he is fined in two years rent, which is C,QOQ(,
* Scots; George Douglas *d iJoryedhurgh fined
* in ti,000/. Scots ; Ker oC Cherr> trees in 3,(KH)
* merks ; James Scot oFThitLstiioe in '^770/, ;
* Francis Hoot of Gieenhitl in H(>0/. Ills uo-
* ticedj that they nil refused the de« laration,
* probably otherwise they might have had their
* excuse* fius*aincd, or l>een tlued vastly down
* of those sums ; and so they art^pruiurly suf-
* fcrers for their oiiiniiin in painl ul" pitrliicy^
' Augttst 9, the following ptj^onsin nerwick*
^ fihire, are fined fur ab^t^nce from tlie Imst j
' l^trlck Wai-dlaw in t.OOijL S*^ots, flglwrt
* BrowQ of Blackburn l.yoo/. Pmi:?b of
* Greeukntnv l nOO/. Alexundt^r Flume in 8t,
* Hathaii nel !!JjH.nce 400/. C'hipper-
Moun ol Irugh 1,000 merks, Georgis
* FTnme ot Bi*i>sf iiden 1»000 tnerks.* They arts
all ordained to pay in six days. But papiicular
instances woiUdht* endless. Nov. li, I find tire
council apiKiiul, * Th»it caption be executed
* with concurrence of parties of SidJiers, for the
» fines of the absents from the host ; that their
' escheats be giUcil in nan^e of his majesty**
* cush-kcej>er ; that in tirnecomingy all found
* gnihy of absencf shall be kept lu custody till
* they pay the fine.' Thist obliged many ui»t lo
compear, and then the soldiers exev^ule llies«u>
tence pronou need i n absence. ' '
yj S2 CHARLES II.
sr:iiMv(!f not odIv without but as^oeit hit i
m3jr<U(.\ auihuriue, to thf.- number of t'^'ve or
fiv liuti'ir. lii, anil took the boMres to luvaue
Aft-l >c'.t xitfri: ^rtiie troujis ot' bis majestie's j
L'/.w!ounhilL wbcrr haviri<( killc-iJ '
•i.t *'_-f erall of hi.^ majfnilie's subjects :
:•:-. and bcin:^ th*:rby iaiboliirif.fi, ■
« ->^!l a.'ifl «;rowe to th^ number of i
-: -ri'^iiftari^l, t'l nhicb lilt iiiaje»ii</fe I
t r> -^ vter noua\«A frfiij;^! ; aud bib
i »• » .f jf'f:.<^r%Jii.on M" lil<i ri.yall '
.' .: \i.i '."Ji- .-.iiij ri', li.t b'lj'jiii-- i
I. ".A l.->-i»^ i;. :.':, *.l TjiS l"Ki#l aiid
. ' : .;«j-.t ii^;,'' ' j! tfl out. rc«jij\red
• . . . 'i ;.- '. '.r »:\ri:»ffr^ in ihfc
"■ ......: l^ * -^ 'J i:i t;.*- .Aii-
.:'.-. .: Uoirs* MJi^-
'-t-.f-i toa.Un^ ibe
Jo.-
'•£-*
R...
I .»
ar^i
I -
iti-
■V 1
r.-
ir :
■ ,. .-
7 '..'J-. k
* ■ .* , - *
■. *■ '. l^r." . .'
* > 3 .. I
.f:
.n tho
.'f T' iM-%
\ -..;. tf*
•■sr
/^
"t^
tiu; ur6-rk wtfof.t itm^"^ *.j^j, k f.
<«•,
1
B
n
V''.*2r*^ ^*«i «»4 «h»r WV '^ '■•-■'
-«U^^^j[T7^te)ttW&4lU^ b>«i^ v{
Proeeedhgs against [8
and conitDaniJf d, all heritors and frechdIderSy
sensible [fensiblej |)crsun8lher«erYantsand fol-
low ers, to cunie out uiion horseback within tlie
lie iititlcT tb(» cnminrjiid of general Dalziel ; the
^birc of IIaddinL>ii}jn to meet ai BeinstouD-
ii;iiir the* 1 itli &a\ of June instant, and to
be under thi* cointuand of i lie viscount of Kingf-
stoun ; Slirliii<j: and Clackmannan to meet at
iht town of SiiiliiiL:, and from tlicuce to inarch
to the links of Ltitli upon the 11th day of
Juiifr iii.lant, and to be under the (*ommanci
.if the lord £lphi!ii,'stoun ; l^rw ick to meet at
Fo'^o-nniir upon the llth day of June in-
stant, aiid to Ih; under the comniand of the earl
(•f Htiine, and in his alisrncr, his brother
Cburles llumt*; Koxhur^^h ainl S:lkirk to meet
;it Annum-biiiiije upon the loth day «»t*
Jnnr; instant, and to be under the command ut'
the lord Eliiiauk, and the laird of Slobs, wlio
arri to command i-ccurdli^ to the divisi(»n of the
ih.Iitia troops; lifo to meet at Cowjiar the
Tiih day of June in>Uuit, and to l>e under the
coiiiruand of the lord Newark; Perth to luevt
at I'f rill the i:>lh day of June instant and
to l»f; iin 1».T the command of ihe niar«]uis of
MMiir«**.c, and Mich pei-sons under him as he
shall ap|/>int ; Torfar to mtet at Forfar upon
ih<: L.tli da\ oi June instant, and to be under
lb*- co.xn.aiid of the earl of Souihcsk; Riii.
r,:,.-fj..iar:'! Mar>.'i.oI s part of Aberdeen to meet
h* A »*.''.*'•'; ii i.iir- iipon the lyth day of
J'i:.*' .'.-^'xir, -i-ii It ^le iiudcr the command of
•. ': '-^.ri ,: \h')\h\ li^nilfar.d FrroPs |»art ot
i.v -'.': ; . *f rn(: i ■:'. '1 i.neffn|jon the l^ih day
' /.;..;.•.-.;; r.t, >.ii'i i** Ji" under the uoumiaud
.. '..J? '-...'I ol Ki:.t..* ; i«l;;ini Forics, Nairn
-i y. r/.. «tMf: \t: ■, I'l MJ(;et ui Forn^s upou
'•>: ;.•',»», r:..v 'J Jfi;. iniiant, and to be under
.*-/./. fr.:..^.:;o' 'if tl.r- i.:jil ofMuriay, and in his
*.-•"/ *..' I'.r-! D.itiii-*; Uoss to meet at
',...:.'. i>.*i */.;:'\ oay of June instant, and
.. ■^/•., '-.■ ' }.,'■ '.-,11.(1. and of the tarl of Sea
;■.'•. >.•.•} *.i .' .1 ..'i tb«- heritors and free
•A . •■• '.t •■:*■ .. . 'vj Unoith Forili, to niajxl
- .-■'.«• . \'M' !iii iend«vonz to the bridge
'.f ••* • / \ .-.kK ?♦.'• liJ'htors and frcfhohlc
*>. - #■•."*-* '„•. i|i'. "i'lsith side of Forth
••i- i^ • - < ' r".'i'vouz lO tlie \a\\
'.. l^ ;.'•*■ »'■ ". i».<r- till tnilh* r ordt
- V. *« r *i» tbi in to M-ize upon
< j..*U/->/, y — - arid in ca-e of res'
k /y> V. t\ i\\ f-ncinies, wi'
* I .,v;-r-* 4» • /, .ij,. t,f Kucdi as slial
' ^.;r--^.: ,- r •/ : -z oiil *»\' llu' sbiiv to
. . V .4^ i . V t'l^'' to tbi* said C4
.• ..#v . . /x- - * ^bi'if- under then'
^ ■ • f.\\ i?r.i»M'i'*J ol iho s
hi X* bi ihc rf
. x^. ■'*../•• ■« f #ri #<.<!, t'l i:aose 1
•. . i'!-.;i to I"- ni:ide h
* « II''. r ll.i .1' comr
,. -A ■• .••. , ./'^ «.M Aw ap.iojnli'd f
I,,,. *.g « •• i«u *v.'/ ''f fb'- immI:'(i tbatt'
^t^^^.i.j. '.«; v» J. .'.' t-.<Ii> k'-pt; <;er
irfy».v» • ■ --'i*. '^ •• /'• . '^"* *'•*•• ** "*"
/^. vv r, - .wj> ■
9]
tht Fi/ejJtire Hcri(or$,
A* 0. i6sa
[10
ftliyroi fvf Fyff, l^dlnlnin^l^ LinIitl>^oilv» Pee
blc?s, I! ' ' _ iui, Sui'lin, < 'lackmanan* IS«***-
M^ick, I Selkirk, IVrth, and others
tlici'«i(j itit iikiiFiuU ; yvt the pcrsionai ttbuve>
w^hdt with llieir best horses find orms, with no
umnv of their servants anil followers ns Ihey
eiui triiig" imt npim liuTTsch^rk, tUvy sljull he
lml>l« lo the jiains Jinil [leniilties provided by
tbe nets of partiamcni iij^auist nnch nn d'> noi
ntit-nd the knife's hosl, or desei^ llit- samp, and
looked upon na disalVccU^d p4*rsonii, and 1'n-
vonrL^m and compilers wiih rehch, und put'sued
and punished accord in^jflv; And ordttin the«e
prcMcnis lo Ut- prinlt^d and' pnhlished M lUe mar-
Lct'cnjsi oi' Kdinburjrh, and other placets^ lore-
s^iid, ihat lunw preteml i^^'noranec.
'* Tna, Hav, CL Seer. Ctmo.
** God sav« the kin§r."
Wndrow ob«ienrcs, that ** l!je narrative ofthis
prochination sticus it was fornieil when the
rctfiil.^r Torcea coming bnck toivartis Cilasytiw,
thonght good lo return^ since it rf-prescntslhal
the jti'^urrcclion in the vieslern Bhirr^i is now
grown to du opin rcUltion :'' uwl he proceeds,
*• This proclamation was matter of icr\ gricv-
oiijj rtnmi; to a. ^reat many gcnUcmcn and
nthcts, who, for di^ercut reasons, eonhl not nt-
t end the king's host. All or moist part of the of-
ficers named for that liost, were i\w mo^t violent
jiei*eeutor<* of Prcfiib\ tcrians, and there were
lK»t a few among them, fay oureiii of Po|KTy,
And »on}e prolcKSud l^ipists. This wan [dainly
cunlmry to law and ihcir own lute procfaniation
iliis very year» and flowed from the strenj^lli of
the dnkeuf York'ts part^' in council/'
lie iil^o ii)?;crl!)i in tlte ^amc Appendix (So*
18) the foltuwiog^ paper * writ by a v ery able
* hand* intituled *' A Letter of Advice v^rit by
a g«'i»tleinan to his friend, on theoccusion of his
^oini; out to wait nf>on the army contbrin to
the proclamatiun^ June 7, 1(>79/'
*' Oppurtnnity i« the life of action, witlKiiit
which ihe doe(»e»rt and mo r ' 'S deviaed
counM'Iji prove abortive* i know,
ibut iiir all d«»i^ais, wlocii jm,.i i ,. i>i mifirht be
startled at, then' is no op|iortanity comparable
to that of Boddeu .rm , -i ni^ ul.iilw.f hsppy
4ir uidkuppy, if t1 cat con-
ecm: for inrns <j _ set alott^
and so rendered iinw»ry and inadvertent, fair
|>rrtextM are then likely to lake, if ever ; be-
UM3 at such times, men havo not^ or take not
sure to i»eareh to iIh* iKittoni of tiling, or to
a^ider (hcfn on all NHb/v, and uccordinq; to all
f»r pri'tteol ond futnve titiportance. \ rec«nt
1^ of the p«r-
i9iil;tnd« to bin
^ ' - zm^
Uv,
hiM
iH: led
\y I , - ,iiid
yi tii work
fci I ^ iihuU; way
liir tiieiii. i>t wtiicil i fbail only ssiy^ that I
r namrd, tWd prcfranie to abyd and remain fir
hi5i iiuijeMie*fi ho»t and royn]'
tfiey find j!.*; ane of them, nn i an4
part ihereoi', which l>ein^ fouo<i r^ ...«. .*^%ys
wish ihcV Tl>!»v ln-HVr li'-i I frr'i'tiialJv TiPOt-firia
ttir flic rr' y I
and his km i i to i
finpjwsc tbt»y wui e aH'ectionately meant tor the
^iMMf of both.
*♦ To apply this to oitr p tiona!
thoti<;:h f cannot positiii ! whd
are at the helm, ot any nmiLfhaud Luijirniinc
or certainly conclude tb« tuinie from the ooti
ward flppcitra ace of their : '
sibie that such importni
now f:i)lcn out, may proriipi uj< ui iv
themselves in their cominatuU, as ^^
our, may be n\ore zealous and foru,.,.
well advised and really dutifnl obedicint
as loni^ a^o it wns told me, by a vv'Mnr>
certain ^eat laan'^ behaviour ut ll
nient, Anno 1648, that he would i:<:
all the world, that he Imd Wtrayed them, yell
be could justly nay, that if he had ^ot a hooa
full of Kfold to betray tljem, he ciuhl hav*.* don
no more; so f will not a&sert, with the rhnrcfi
w state fanatics of this lime, that our contii]
sdlors are ronlly desi^ninf^ to introducHi up
Ui, I' " ' (§1
cutch
6IUn^ i;t t »| li>>4'( i:U^ II IlKli' <'l ) trtll (I
may say, that had they the lOOKt real and for*
waril intention of so doittcf, they coubl hnrdli|
have t alien upon moi-e hkcly und favournbM
eouriJes, for that end, than some ot those tbeyl
are taking.
•* There is much talking" of a Popisb Plot, and
if there be sueb a dt'*<ig"n of arlutrary power, i
being* also a work of darkneJ^^ that dares not i
Hault Its with open iaee, and m»ct to go
hands with I he utlier^ 1 may call it anotlie
i'lot, which tim^it work uoderboai\l aniil he'
be (irepared to defend it. And t!»cfe two pn
eiumations, the one for volunteers, whereby all
the Papists in the king^dom are armed, and
called nut to the fields ; and the other charging ^
nnder lii^licst pains, the whole nobility, crentr? ,
and b^ritom to attend the army, under the
command 'of otiicerti appointee I hy the conncil,
lire like two mines t^priin)> ii|K)n the chief W*-
tions of our liborties and reli*i;ion, and we, likd
twds, hear the rKuuc, and pijce upon the fimokc%
but diiicerti not, nor consider what it Imth car*
hed away with it.
*♦ For my own part^ to (five yon my jndg"-
mcnt freely^ aa yon have desirei it ; amongst
all the iJfHevanccH which we have been com*
pbiinin^ so muoh of, llie«e yeiirs hv prist, tlier*
nri' but few, that either bti* ' ' v,
or arc imlc ed of greater \v
iherknow I nny onr Hiep« ^viiimuv i ..|ki > ,jijj
arbitrary' (lOwer have bud occnsion ot making
*.iiih.i r.r.H, . .. fi»\wuds their *-'"'> Mt
-by they have j^ r
, - by ibeiie tw<i%vx
L
3i CHARLES II.
they ought to be panished in ther peraons and
f^ouds, to the terror of others to comm^ the
hke lierefler.
Pertewer. — Sir George M'Kenzie, of Uo«e-
haugh, our sovereign lord'ff AdTOcat.
Mr. Robert CoU^ Advocatas Procomtor for
}Iay, of Uaihousie, alieadges that the imnnall
** By the constrtation of our goverament, we
are not only ruled by laws, but also by cus-
toms, the obligation whereof is many times
equi^ alent to that of our most positive laws :
must it then be a custom, uid consequently a
law amon^ us, that, to satisfy the humour or
interest ot a court favourite, we may be liable to
most heavy burdens, and taxes upon our es-
tates, to furnish him with power to oppress and
crush all that will dare to oppose him ? and
notwithstanding that we b^ow such large
parts of our fortunes for the maiutenasoe of
soldiers for that end ; ^et, when by the long
continuance and eztreimty of those oppressions,
which were enough to make even the soberest
and wisest men mad, he hath forced wars and
disorders of the highest nature and conse-
oueace, it may be, designedly too, for ought
that is seen, and as by no small politidans is
reasonably alledged, we nevertheless must be
obliged ako to come out in person, with our
lives in our hands, and serve as soldiers under
such commanders, as the council, being mostly
his creatures, think fit to appoint: wherein
these things are noticeable, which gentlemen
would do well in time senousiy to consider, if
Uiey l»e indeed content that they go into a law,
lc«rt afterward they repent too late.
*' That whi-n we have granted never so large
taxations for paying of soldiers, the council,
without a parliament, or our own consents,
miiy nevertheless command us to serve as sol-
diers ourselves, though it were but to uphold
9omc particular interests amongst us, which,
thus circumstantiale, will be found to be some-
what more than what either our old custom of
traiting upon the king snd his host with forty
«Uys iMiivision, or yet the late <^er of our par-
liMiwnt of all betwixt 60 and 16, do import.
•* That they may impose commanders upon
«»» without or contrary to our choice or con-
9^U whom if we offer to reclaim, we may be
^1^ upon our allegiance, to obey, as I hear
^f% Mi>i dane in the case of the gentlemen of
imay so oblige ua to serve imder
■tea, at tl^ have done with
_„ EiMaidiu and Marshal's part of
«^ i^wiMgh there are so many
aftainsitbem, and
I UMJ areall pro-
. Jh-oceedingi i^tftetf [»
cannot goe to the knowledge of ane iaqocist,
because it is offered to be proven that he was
actuallie preseut with the heritors of PMh-
shyre, and hade two or three servants with
hitu, well apuoynted and keep't all the rande-
vouzie with the capUine of tlie shire, and went
aloiigst to the camp with the rest of the gen-
tleman of Uiat shyre, which defence doea to*
and kinsmen, perhaps for no other crime, than
their standing to tbe just defence of their and
our liberties, against the incroachmenta of SMne
court iNirasites, or whatever else it be, that yet
his majesty's will bein^ pretended, or at wlini-
soever rate procured, it must be presomptioo
in us, or somewhat worse, to inquire further
into the cause.
*^ And after all this, what is ours? and what
privilege is there that we can lay claim to? If
we will not think upop these things, when re-
presented to us, nor lay to heut our great
concernment b them ; it may be said, wiUurat
wronging us, that we deserve no kiss than all
the sUverv and miseiy, that by such prepam-
tives are designed for us. Are all the nooiUtr
and gentry St Scotland content to settle tkm
yoke upon us and our posterity ? Most we he
the degenerate socoessiun of so noble and y
thy progenitors, by yidding, without at
mony, those liberties, which, with such {
and4:are, they retained through a tract nf ao
many ages, and transmitted intire into- oar
hanJs? Were we bom to be the betrayert or
sellers of our own and our soccessoni birth-
rights ? and so to be marked as the nerpetnal
shame and opprobry of the history or our na-
tion, unto the end of the world?
** As our readiness to serve our kinijps, to oibej
their just laws, and to defend their persona
with our lives and fortunes, hath long time
been no small part of the glory of our naticin $
so hath no less been the native courage, and
resolute boldness of our ancestors in resisting;
and opposing to their face, such flatterers, as,
Ereying upon the ^foodness of their prineoi
ave at any time, by misrepresentations of per-
sona and ^ira, endeavouned to abuse his au-
thority, by forcing or insinuating upon hi#
faithful subjects, customs different from, or
contrary to their settled laws, or derogatory to
the honour, and opposite to the true interest of
kingand kingdom.
**The Caba^ who, it seenos, knew well enough
that their counsels woukl never be proof eitiwr
of law or reason, and so behoved only to bo
propagated by authority and force, had good
reason to obtnide upon the late parliament of
England, that Test, whereby they were to do*
dare upon oath, that it was unUwful to reoal
with arms, any person acting by tho king^
authority, which they, seeing the project^ and
foreseeing the event, found no \em reaaoMblo, ,
far the good both of king and eonntry, unani-
mously to reject For to say, thu no nan
actuv by the king's authority oivht to bo roJ
siatea, ia all one aa to say, tnt it is ImpoiBMo
that Unga can be ahnsad $ and aB ono oo W
15] 1*^ fifoihiri Ihvitori.
tmllie eleitl the iybell, ^ hieb only rvlalei to
icb as remained tVoiii the lios^t,
i Wy Lord Athocat oMaudgeSj that the allc-
"ince oughl to be repelltHl in respect be tbe
A. D. 1660.
[14
iy\ Uiat if a wicked minister design tbe ruin
both ot king and kingdom, under colour and
Iirt'textofaulhorilv, Jt is unlawful lo binder
lim, though it were in our power. If iiaman^s
Plot bad taken effect Wf'ore Egther's access to
the k\n^^ who will judg:e it to have been a
crime, tUou^U tbe Jews had stood to their own
defence, uuld such lime, as his trtachery, iheir
itui'icencri and lUe ki«|j*» damage bad been
I f«jw«s«nle*l ? ibouph Gcul in his mercy and
I justioe provided a better outgiitc for tbcra^ and
• worse end for bim ; a dreadful example, and
which ou^ht to strike with horror all abusers
of their king's favour ami authority.
*' He d^ierveth that a tyrant should rcigti
over himf and is not worthy of the protection
of a lawi'ut prince, that will not cbeerfully ba-
yard his liie and fortune for the defence of his
^r^on, honour, and just laws. But what if
the king^s name be made use of, to acts mani^
tesily contrary to bis interest in aJI these, and
which, it may 1^, erery reasonable man, and
loyal subject is bound in duty to beliere, his
iDi^jesty would abbor, if impartiaJly consulted
in ibem ?
** If this be not impossible, I hope our next
IkarUanat'nt will see to it, and consider what the
tbmier batb done ; and till then, before you
engftge yourself too deep in tbe cange, you
b^ve good reasoD to examine, both what are
the true causes of iliese poor people's appear-
ing in arms, and wli«t they would be at; and if
they be oppressed contrary to justice^ or de-
mand not unreasonable things, you would think^
what may become of you and us all when they
are broken.
** They say, the devil shouM hate his due ;
and to deal no worse with the Presbytcdans,
though they were bs bad as be; I mu^ coniess,
that never a {people on earth were dealt more
hardly, or more unreasonably with than they*
They stand upon a j9cruple uf conscience, that
I Ihey must buve no meddling with tbe bishop s^
« ajMi that both by scripture, and their solemn
oath to Goil, which they think no man can
dispense wiUi, together wUh an opinion of more
sensible benefit to their souls, they are bound
to hear none other than those of their owir
way ; which being granted them, as it was
once the utmost of their aim, so, no doubt,
WOitld have as absohitdy secured tbem to
peace, and obedience to magistTaies, as any
otlier *-'''' ' italsoeycr: but this not being
aliowi L >y , lor avoiding public oftence
and the r^acn oi tbe law, ■secsnbled themselTes
privsK'ly in houses for healing thfir {ireacheni ;
wbidi, ail>eit the same be toie. openly, and
without either cballfiige or punishments in
J&nghuid and Ireland, yet here was looked
u^tU u io ndtfiiious a crime, that strict and
Ctevert acts were immediatelv issued foKh,
lawes and acts of parliament heritors are to
assin the king, to punish rebel Is, and are U^ ^
enforce the ktnsr s^gainest rebel Is, both which
tteccssarbe impfys as the nature of their dut|
bouse, apprehtndeil, imprisoned, eonie in <
prisons, some tortured for procuring confl
sions from them, sotne weak or sickly perse
blocked up, till they died in prison, others 6ne
in great sums of money, some wherecif paid
again and again, to the great diminishing ol
their fortunes, and detriment of their |Kwl«rityy||
others not paying were kept still in pris<
some whereof have been prisoners many yo
by past, and are yet so, who never saw a neM-
conventicle.
'* Thus they wer© constrained to betake
themselves to the hills and deserts in the tiehli,
tor shunning of these severitiec, for which they
were more cried out upon than ever, as pers^mi
not only disobedient to the king's laws, ba~
designing a rebellion against bis person an
authority by these Bekl-meettngs. Tbey, lika
so many Roman vindicators of their liWrltc
and rights, knew that desperate disease
required dpsperale remedies, and therefor
thought no Imzard too great for tbem to vn^
der^o, for preventing the bondage threatene
a^inst them and their posterity ; while we
like so many asses, crouch under tbe burden
He must see to bis freedom, he to his life,
to his fortune : and though our endeavourp iq
those methods befool us never so ofWtt, yel
we'll sit still and see the public toter^t sinki'
rather than think of another wav. If our
wounds will not cure withont pain, weMl ler
them rot upon us. Hut behold tlie end of thi«
sure dealing, of this thin skinned and elfemi-
natc tenderness. Fy unon it ! it looks as if
this generation were made for no other end but
to be tramoled upon, then destroy ed, and well
to deserve both «
*< Upon this head, the then armless multi-
tade was pnrsaed from hill to hill, as so many
traitors; armed men sent against them, bj
whom many of them were apprehended, aome
wounded, some killed, some imprisoned in cloae
prisons, some tormented, some sold as slaret
to tbreign platitations, though by tbe Provi-
dence of God, delivered in a strange way. to
the shame of their enemies. Some of their
women* both old and young, most barbftrouslT
used, being stript naked by the rude soldiers,
their oblb<» carried away, and they lefl in that
destitute condition in the ones tields. And as
if all this their patient vnHbrtDg, had server 1 for
no other end, but to mcense their adversaries
fury and implacable malice the more again si
them, as a more eminent proof of their destiiie
at them, they mised a great army, with %
sumptuous train of ammunition and artillery,
to Aghl egainet the very i^^nd of the west
country* as carrying alooM with it an in*
fectiottsprf-*^- *— nn air, whereby other places
might In 1 ; f^r the poor people in
the mean u,.,.^ ,,^:i» all sittitvq^ '^%jtwb^^ Sa».
V
m
32 CHARLES IL
[Hie does, not n simple! comin«f to the
liOet, bu4 «nc rpiimmiittr lill Ihc coL'inies F>e
defuta ; hut so \i is, that liDthoiisie did not st4i}'
with tjie host, but came hofiieaud bq is lyahle ;
will, it' this vttiv allowed, the net ef pnrliamcnt
*' This their host mainly consisted of b.ir-
haroua liii;hlanders, by whom, like as ttinny
•avftges, cruelties, opprcWiotiJ?, pUuiders, an<l
i»lher horritl ahuses n»Tc exercised npon then*,
iA)i3 g^reat, villuitirMt^ and sihamerul to be nnmeii,
hy 'uiy man wfio owns himself a country man
i^f tho»ie who eomuiUti'id them, or of those slate
ijiiiiwlers by whom i\wy were siuthorized.
** In llie mwin time/ by an aft of non-ad-
ilressesi^and aoothfr otlnlurcommuninfi:, where-
by tt is unlawful for Ihu son to gfive a bit of
hrcadi or lo speak to his father, or tlie wife to
ker husband, thougrli lying' 8tarvin;j at their
doors, all access by supidicatton^ or otherwise,
either by ttiiemadTes or their friends, being- cut
i>ff from them, either to his majesty or his
council ; and whatever acts of ^rarc his ma-
jesty w*5 pleased to sicnd in their faiourSi the
isme bttinf* either so mfnced and clogfped, or
wholly sappressed by the means and power of
tl^ebinhops in the council, that they wor« alto-
gether depri?ed of the benefit thereof, as was
done with a late order from bin majesty, for
liberty lo them to preach in houses : and after
all this, a proctauaation beiog' emitted, whereby
it is declared treason for them to be found at
iho&e meetiufjrs with any ajms, and the standing
forces bafiug' received "orifers of tire and sword
tgainst all that should withi^tand tbeni; which
bein^ put iu execution by captain Grahani of
Claverliouse, to the effusion ol much blo<>d, and
the same measure being declaredly appointed
for the whole remainder of that party ; let any
cober and dLs interested mau judge, if, with
that wijse and honourable counseller the earl of
l|»haftsbury, it may not rather be Uiong^hta mi-
ractilous work of God, that these people, havings
the hearts of men in them, should have sitten
and suffered so much and so long- ; than be
4hau^ht sti*ang«, that now at length they ap-
pear in arms for their own defenoe from such
Utter and imminent i-uin ; or yet strange, that
f ucb numbers should How in to them at such a
aick of time, when bifih those of our own no-
bility aud gentry, who ha?e so much endea-
f oured to reprci>«Dt to, and convince his ma-
jesty of our grievances, have, by the forgeries
and iniiouatious of evil couns<^llero« liemi so
<itleii, and yet are^ not only ti>tally trustraled,
6ut shghtingly and misre^-iirdfutty ti'«»ated, as
persona oppo#iile to hb majesty ^s inteit^st and
fin.-; — .. mj4 also by proroj^Jing '»f *'- i-'-.'j;.
iment, mensho[»4is of helj , ,
^ . . . ■ . . .^j liberty or reii gi»m, so un i \ - , : .- 1 i
tbem, and the succession of the crown, as well
bcrc as thur \s Ki\ Vikt \\ to be dcvolvt:d \ipun
ji known vt.
*' Are I (0 bestow your a*iiii»»t-
mim of alt tbe!»e op-
_ I link that your loyalty
•lyagvth y^^u w tZ do f Virt bctofis you go» I
1
RhonlJ be eliisoric, the coantrey irtideffefi(lil»j
and n;bills unpuniMhetK
8ir George Jjockftart re|dy8, that tlic de-
fence atandii relevant notii ithfltaniUng of the |
answcjr, because it ir not contravert<Ml wlial is j
woujil have you answer me seriously these twc*
or three questions.
*^ Are you sure that your loyalty would fortify
you to suffer patiently all tbose things, if the
burden were on your own shoulders ?
*• Have alt these arg-uuifrits, that you are so
well furnished with, against implicite failli !€►
churchmeu in church -aff^urs^ no proportionailii
weight at all aqpaiust iinpliciie faith to states-
men in state -affairs? Or can you not say thai,
the streams are muddy, nuless you coticlud^
the fountain to be so afso f
*' Who bad grejLter respect to the king's ho-
nour, inieresl and laws, tnose, that witlKUil th*
conilitions required by the law, in obedt(>nre to
the act of council, found caution of law-
borrows for his majesty's safety ? Or they, vrho
in obedience to law, reason, conscience, and.,
their allegiance to their prince, diti altogether
refuse it, both as a thing wherein the law could
noi be answered, and wliich they found exceed*
ing derogatory to his majesty's honour, dignity
and aovereigii authority, which our allegianca
obligeth us, * with our lives and fortunes, to
* the uttermost of our power, constantly and
* faithfully to maintain, defend and advance _
* against all and whatsoever persons, power or 1
* estates, who ^hatl presume in any ways to prew J
* judge, hurt or impair the same?' James 0, i
purl. 18, cap. 1, /
** In which, by the way, it is worth the od*
ticing how toiserably Jhose jiatrons ofsupfv
macy, those champions oftlie arbitrary leli
law ovei^reacbed and faltred themselves, li
tliistheirDOtable legal invention for supplj*
the room, and saving the credit of their il6r
bond, in that, while they are coniendinf
much to exalt the king above the law, the
the mean w hile, not only make him a sr
cant and defueaucr of himself to the lai
subject Ikim to so mean and huioble a c
of necessity of supplicating, a degree so ^
suitable to a supreme governor o^r allM
and in all causes, that not only Jie is m
of alt kiags, that ever was made, byf
counsellors, to stoop so low, and likeli
Ust ; but even amongst bis own subjeq
are many thousands, that would thiw
far below tiierii to hiwborrows of aiidf
majesty, at lea^d Uih council declaf
ready to take by that act, yea, whtf
much houour to maintain^ as wr
them disdain the very thouj^lit of au
ticc. We may t*"''-"- **'*t> « u.i»
cuuucil Itatli bed
thf^ir actmgif, wti'
their choice*
** Now this waa a prodami
t I llOW C41I
t. and iotei<
a^d iu tUu;.(^ f uudatneut^Ll oUx^di
tlie import of itie acbs of parliament Ijpbrtlcd
upon, M hetbti' lliey be suflhcieat to found aue
dittay againc^^t ilt'SurtJii ^e^ or not ; but ihc
by our wbule refireseDtatiTes have unani-
mously bound tbems^ilves and us, and their
and our siieeesson*, to the perpetunl and nual-
terable Enaint< nance of both, is eiideat tu all
that will not wilfully sliut their ryts,
** U it for us ib'en, lo take upon trust onr
kiu^^s mind, honour or mterest from such law-
c'ivers ? Or if we Jo, may vie not allcri^ard l>e
found aa culpable in obeying, as they in com-
loanding- f
^^ Jfihis prevail not, consider but these heads
of the oatii of c^oronation, ivherewifh, and
wbere(i]H)n our kln^s iisceiTe the crown of this
kin^d«im, *■ that tliey shall rule the people
* c*rmniiired to their charge, acoirdiocf to ihe
* houi^nrahW litw> n.nd consiitutions received in
■ thii* reaUu ; that they shad procure tn the
' utterini»!<t of their ]iowt'i\ to the kirk of Ciod,
* and hail ClmKlinn people, true and [H'rftct
* peace in all time comiui; ; that tbey shall
* forbid and repress, in all €*sitntes and decrees,
' reift, omire^sion and all kind of wroi)i>' ; thaL
' iu all judi^ments, they shall command and
* procure, thai Justice and if4|uity be kept to all
*■ creatures w itbout exception, a^ the Lord and
* Father of all mercies be merciful to them.*
James 6, parL I, cup. H. Think then ho\v deep
it may draiv upon their score, not only before
God, but betbre mau, who presume to take
upon them to advise or persuade his majcsly to
act, or to act themselves under colour of' his
authority, thing^s manifestly contrary and re-
|)ttSfnant to this sotema oath of God, and chirf
*uiHlamental hw of our nation ; and of what
fatal consequence it roay afterwards prove, not
only to tiiem, but also to their abettore, aiders,
cucoumgm iu such wicked imlawful cmmsels
and practiceK ; at least, if erer Scotland be sn
faappy m to return ag^u to the uabiass^d rr^ht
use of law, reason or coascieocc ; and yet more
ca;peci:ill^, when, to the conviction of all men,
our king- is of hims«lf so naturally projiense
and inchrjaUle lo all ways of justice; anil cle-
mency.
'* his known, that his majesty, at his restau-
ration, declared bim^tdf resolved not to alter
the govfr TiriLf f.rihe church thenestablishe*k
ItiBtkL of late also, a plenary imd
iinivers . ^ nee was granted by him, iu
favours ot tiio uonconformi$it«^. Thise are the
uattTe eiTecls of our kfn<];- s mcli nation, ^ooiJ*
nets and clemency, by either of which all
ihcse immineut mischiefs might have been pre-
vented* Who tlicu were the obstructers ?
Ought tliey not now rather to be searched for,
looked upon, and dealt with as the greatest ene-
Que^ of king, people and government, tlian
lusinted in the prosecution of such pernicious
counsels as have oncasioneU so imliappy and
so uuseasotiabte a bieach in our peace and
safety ?
'* Shall I ever believe that bis majesty, who,
of his own nature^ is so wise and so just a pat-
VOL. Xh
only def^tiee is, that ther b no crimiuall ly-
hcU raised aguinest the patmall as a deserter,
bul simplie for byding^ trae his majestie's host
leru of civility and obligingness, and who
ruleth by compact betwixt him and his lieges,
would ever have forced commanders upon the
nobility antl gentry ? ei^pecially at a time,
when It appears, be oetdeth so much their
sen ice, and ibey are so willing to bestow it.
When the French king, who hath no other law
for his actings but his own w ill, yet dotb not
so much as propose any officer to the gentry,
when he caVleth them forth, but remitteth that
matter w holly lo lot.
** Can it be supposed, that his majesty, whose
life, honour and kiugdoms are m bunted for, by
plot after plot of these bh>ody emi&saries ofSutan,
the Papists, the greatest and most insolent ene-
mies ofmonai-chy,and the most incurable plagiie
and bane of all humnn society, and who there-
fore commanded lately his proclamation to be
issued forth, for apprehending or banish irig
many, and wholly disarming all of them within
all the corners ot the land, would ever not only
have restored to them the power of their arms^
but have nut great numbers of bis faithful anil
hoti^ourahJe Protestant sulijecLs under some of
their commands ?
'* Can any man think it his majesty's will,
that Bailie Baird^s son, w ho was never a sol-
dier» should be cornet of a troop where the eati
of IjOthian, earl of Dalhoussy, viscount of
Oxenford, lord Torpichen, Balnierino, hi\ are
10 ride as troopenai, and where his grace the
dnkeof liucclcugh, when he arrives, can, ac-
cording to the procjamntion, pretend no higher
than the tight hand of the Jirst rank ?
** And since we haie such ground to doubt
of these, and it is so well known, that bis ma-
jesty did not of himself intrude bishopt upon
us, but only, by the selfish treacbcry of some
who were employed to secure us from tliem, he
was perewaded, and made lo believe, that that
governmenl would best agree with us : who,
in reason, can, or ought to iniagine that it pro-
ceed eth from his majesty, that his subjects of
his tlirije kingdoms should be engaged in bloody
wars and devastation of their fortunes, wherebjf
they may be renderetl a prey to foreign ene-
mies and lurking Papists, and un6i to serve his
majesty iu n more necessary cause, and of far
greater concern to king and kingdoms, witli
the uncertainty of what further ruin these
evils may grow to, rather than part now witU
that ffovernmeni of the church, when he sees
how far he bath* been tnisinfuriued concerning
it?
** His majesty^s both mind and true interest
being thus cleared, this then, in plain terms, an
11 consequence clear enough of itsetf, must be
the true state of the aifair, Duk*^ Lawderdale
is obliged to the biiihops, they helped well to
uphold him when he was tottering, and yei
help him, and therefore we must uphold them,
though we should allfaH in the quarrel.
'' l& the cause then sufficient? Caa yotL
C
I
I
m
32 CHARLES 11. Pr&ceedingi againtt the FlfeMn Haiimr, [W
\mni\ royaU siaiidiirt. uhich is altogfitluT dtsttnct
ln>rii liie crime orileiert, und the^r are screrall
I defences coropetcnt iq tbe one cas^ ihut are not
Itake }Otir life in your band, aud !£<?curetj re^t
fyonr conscience upoo it P 1 hniiiph vf>u could,
)'ou Bure that \m gain fihRil be yours?
fAnd« prav, wliether was it interest or con-
Ptenee, trial made that statesman, wbea he ivas
llast amongrst ns^ cndearoor no much to have
Istriick in with the Preabytertan i>urly« those
itebels a^inst tile king and government, when
Tlie saw tliem growing so fast, and so difficult
[to be borne down ? Which iikelv Lad taken
t effect, if he had not been checked m tht^ bridle
lit hi^ first starting aside, and so ()cbuvcd to
ITcnpw his cngatfemeols, with fi^esh and evident
rUmimonics ofhisreahty* not tinding it fit to
[ tinhinf^e himself of the ouepai-ty, whire he was
yet unsure of the ulher*
I ** If Ibis llien he the sum of the matter, that
I the bishops serve duke Lawderdale-s interest,
iind we therefure mast ierre the bishops in -
[lercst ut any rate, lest othen%ise we filiould
weary of lieiug tre:id npon ; all I can say
t captain Carstair^, Baihe Caroiichacl, the
[ town- mnjor and hiii men « are like to come to
I BO fjumll credit by so noble and nunicrous n
\ traui (d' assessoi's, as the whute nobility and
' gentry of Scotland. However on sohie ac-
counts, ihty must yield to them the prehemi-
, nence, those only haTingtheadiantage of profit
for their Ktrvicel bcint^ mercenary n^^ues, and
^ bavin ^^ others aUo under them to wait ilieir
• commands, while these hare the hon«»ur to
1 testiijr their zeal, by far greater condeaccn-
I dency of serving under command, and some
under those theyliate, eome under those thmt
hate them, some under in^igttificant green-
, lioms, and others under worse tliau some that
«TC, or have been their hired isenants, and all
this not only gratis, but to their great ct pence,
•ml with tlic exposing of their Ures luid for-
101185.
*• ir you think this honourable for you, you
may be doi n g a& m ueh , an d as si I en t as any , a (be it
€n all the forenamed gruundn you have so jtist
snd handsome a way to retreat": if not, ] fi-eely
give you my advice, that, n't 1 doubt nntluit
you will liotQ be as lorwajd anil cordial as any
man, in testifying your afTfcdon for the rt il
tnaiutenance of lirs mR)v^iy*ii authority ; go, if
you lind not yoursc}f indeed conccnvrd to give
proof of it in iliis ininrrt^l, you di«enjjngt!your-
•elfin tiriic; or it otlKTwl^et that yt'i vim go
0Ot out, nor do any thin^^ withfi ' ^ ^ ii
©f tahojurt\ upon tht* iorefiici i
that, by a bud picpanilive, yow .,< ;,,„ .,.,,,-
cnsion af an irnrparsible dunnige to your coiin-
Iry ;. which, at snrh a time, wore { nf one of
those shires that are called out, ymi itjay be-
lieve me, I wotdd think it my duty and honour
to do, though Mith the greatest hn /.a rd^ and
Ciiuugh there were not another to sercnid mc .
IVhen the public inteiTCSt is like to Huiftr, by
tJie ignonitjce, neglect or coward ici- of all, hV
nehtcth double glory, making all Uti uiUioia,
proper in the other, and cr ht*i\m
ther own naittre are */ri>/*jA. mh\ *
not be extend it tiryond the prectue tcmirs Ml
and all their posterity his debtors, who ^teppetk
in at such a uick of extreme Deed, with oppor*
tune help and assistance,
** Take courage then, and regard n«>t itieeil-
mour of court sycophants, who live upon tbeir ^J
country's ruin, and trill l»e crying down audi ^M
heroicK acts, as opposite and prejudicial to im ^^
majesty'^i authori^. But be you confideot*
that it Ihall always at long run, be found «nd
seen that lie is the best friend to his king*, tbat
is the best friend to his country, and ti» tlie
laws and lilierties thereof, which knh kirig anil
parliament have declareil to be the birth nght
and inheritance of the subject, and the security ^|
of their lives and fortunes, Charles 2. Pari. 1* ^
Act 17, and that these two interests are us in*
dividable in the body politick, as are thoi»e of
the head and the body natural.
** For what is further, consult the scripttm
and your conscience and be fully perswaocd la *
your own mind. For me you know, how
much and how often 1 have contended for epta* ^
copacv : But now I have considered tlietr ^|
partial behaviour in the matter of Danby und ^^
the lords in tire Tower, those arch enemies (J/foor
king and gorernment, I see them lioth iliert
and here so knit to the bias of the courf, that
they will rather sell their souls, and the wbo1«
interests of the kingdom, than not swing to iliat
side right or wrong. 1 see them gencfnlly to
be men altogether set upon their own proffit
and advancement, and that, when once they
can make their court well, they little mind re*
ligioD, or the care of souls. 1 see they take na
effectual course for curbing of profanity, atu|
that, ifa man will but stand for their grandeur
and revenues, they easily dispense with bis bein^
otberwise what he will. I see, that at moist any
scHodaloits fellow that will own them, antl hatu ^^
but an M btfore tiis name, may ha^e a kirk ; fl
too rauny whereof I know, and 'more here than ™
with you. I have considered bishop Sharp, mm
their head and last introducer, whose rewftrd
hath Imtu terriUe in the justice of Uud, what*
ever the actors have bern. And 1 have coo-
fiidered bishop Patersou aK the tail^ whose re-
wanl is, no doubt, waiting him also, if he men^
not his manners. 1 huwe not forgot their
rnjcl, arrogant and blood-thirsty stopping of
his nntjcstN ',s grarious bounty, and keeping up
of bis n ni!<'(ion afWr the business of Pentlaml,
whicb^ with their torturing and hanging of
the p«tor peojdt*, aOer tjoarttrs given them in
the tiehU by ^ieniral Dalziel, as it was a singit'o
lar reword to him for hi^ good service doii#
thc'iTi, so may it, to all |ionet<t hearts, be as
[lalpiible, as it is an odd example of their faitb
and ninnnftrs. I see the very oflVscourings of
thf rj\rth employed by them as their trustees
nnd hrroes, fiir propagating of tlieir conformity,
ntid sotiir of thvni, ihoiigh base all over, and
de%pir«bli* above all e.xnression, yet owned and
caretntd by them, Qi mav c fellows, and chief
tl]
/or Abimcifrom the King's HaL
A*0. 1680*
rss
wliieh tjjey are lybdied, and cemiiilv the
' <lffet»C4? pr^-iit"' T^ a lotalt dcfenct; ftgtuiiest
' ihc k^iC!ll r.
Hy Loy^ ....,,.,.; 4!u|>l3e«^ tbut abytlin^ is
KproBslie hn|iUett in iishitvhiig and viilurttu^t
Of no man cane intVirce but be that byds, ami
pIhh miiji'fii'iti's aiUociit insists, orcordiug to tbe
tfiiabsuitiptioii^ Ibot be did reiniiirie and abyd
frno tbe hoii Ibe day of Bolliwei iVijfbt.
Hit Gear ge Lockkuri^ adbearmg' to tbe de-
fence, craves a diiititictintcrtoquitor, and farder
dleadges ibattUo des«^ttin|^iudc bein ly belled,
. yet the dittay cnnnoi be put to the knowledjie
) of ane assyse, becaui!»e the pannaU did obtoiiie
ji V ' .lis of Montrose, cap-
1 ids, and conunandet'
c-j ijM' I iniii MiVM -Miiiemen, whtr u[iODthe
Lconsideraiimieii tberin mentiuued, and parti -
VcuUrhe that the pantiatl ivns tender and vuli-
(ftiidntaric and not able to atteud, nnd that he
^Lade left three vnU apiK^yoled horssetnen to
iltend his ninjesities 8frviee> he grants him
lioence and Ubertieto jjne home without trouble
r HHiUeatatJcm, as thcsnid pns^ at lenj^-th hilars.
'|>fOmoters of their principles and iuleresit: yea,
io Uttk choice DitiKe ibey on this bead, whe*
Iber as to Profanily, Popry, Atheiikm, or what
.eliie yuu can think on, tiiat» for uug^bt tliat ai>-
rpears, a.^ many devils out of bdl nould be
.Welcome to them, to [irop their Dajj^on of pre-
Jucy, and to be a »coiir|ft- tu the tanatica. 1
if^i forc<2 and the rigour of the law are their
two g^{id pillars, the Jachin aud Boa^ of
[4lieir tctuple ; and tb^ their whole poviert ^^'
Itlerect and endcavouru are 80 joyutiy ami in-
f tirely bestouctl upon the auppresfcing of con
tiTenticlea, and for hindriu{^ the pnachmg ot
L^tlie ffospeif by thitse of the nonconformist
j ^party^ which renders it to me dreJidiuiK' sua*
h|iiciuos» that their cause mu^t be but so and so,
I M heu themt^lvesjudg'e it tiie tt>ain support and
|, security thereof, that it ne*«ir came to a fair
i lieariuif ; for the truth lit, they reckon them-
^.ie)vc» undone, if ever the pco(deiftt leave lo
.liear these men, I see, ino«i of them look
either \vjib allection or indirtWunry ufion l*o-
[.|)ery, that the PupisU ibtui^eht s labour them
'ethau any other ^ov^r hsm ■ t \\v-A by ihtir
line** in pro2*ecnUn|i: t i ;ireiheoc-
t of much euUo in - and that
\\mpft much life to uU tbetr imsichievous
PtlDT tbe hope they find of \et ascending
I , up on that step of their hierarcby Mmaiuin|!:
ttinon;:^! us. Whereat, on the Other baud, it
^^^\«led^^id by all, tUut the
il it Hill, it is certuinly the
^bcst iriiiLkJ) Lk;;.iio^t I'otwry in ibe world j the
total j-ootinj^ onl whereol nmor>;^t uu, now
ir the diM'ovei'ieti ue have, onytit on many
ounts to be I'Htcemed the gruml inter<Mil»
herein tlie powu^r, wit and endeavours of
every \^i^ui\ subjeci, t^vi-iy i^riod couttuynian,
and exiiry ^^'k"-! < 'l.t ,-_ii.,:. vlnu.M um i.iujin*-.
Andt in Hut;, > 1,
ihefaiai coiifcr^ j
meat of biahopi amon^t u», ^itk ike apiiear-
(
His Majesties Advocat re pi yea, that those
^entlennin and heriUirv *- i ' 'v the custome
of ifie mUiou and by *- iticm of the
coimcdl, nideidfifcd til liu...,. ... lung's host,
to asciat and enforce as «ai1 is, it nrninoiia
the power of the marques of Montrose or any
commandiT whatsoever to relace them from
this duty, for as they carac not thrr by bis or
therjmtboritie,so*ej"uaeatoo' ie/
and if it wcr other wayes c^ , ab-
solutely disapoynt his maje^tiii* service, w'he^•
as they are choised not to dispense but to
command andtherfortJiey are •> extra <>fficium'
when they dispense, hu\ if the sicknes waa
such as necessarilie and certainlie hindered
tktusie from goeing on, it shall be found r«
levaQt, which is alTthat any gwd Mibjcct cane
crave to be done in his taTours ; and this is not
the grantingr of a pase hot the reroittinjf of ane
duty which the lawe exacts : and by tlie prti-
clamation wherby the commanders wer ap-
pnyntedi it is deelaired that such as oanie
not or deserted wer to be lyable, so that they
wer to knowe ther duty by the proclamatioo,
and lion who commandit (but the councill)
conid warrand ther deserting.
8ir Genrge Loekhart duplyes, thatthepannall
op pons the passe 'and the nctH of parliament M
I Y bet ted uiKkn ordainittg^ all persons to enfoi-ce H
his majtstie againest nottor rebel k, bears thst
exception, unlestie they hare ane reasonable eX-
cusation* and ther cape be no excuse more
reasonable then a passe from a commissiunat
oBicer, tmder whor^e ccmdtict and conmtand tlie _
pan nail was requyred to serve* And h^wyem ■
were clear aa * Grotius de Jure belli et pacis,' m
thiit [qu, not! only suprenmc commandcTs
ance of what is tike to be tbe end of the pre-
sent ; and that our nation hath drunk in nuch
ati inbre^l and indelible prejudice against
them, that thoue^b the&e fourteen men were as
nmuy iraints, neither can much ifood he ex-
pected from th»'m, undtL-r that character, in this
place, nur yi t they ever long settled without
blooil and coufu«iion,
*' 1 wish only the pr- '"^ ■ '•- m ^.-ij f^\yf»
some pithy »nd incot/ of
their rt^al uffevtion to !»;. .....,.,,, .„ . .iful
sovereign^ (md to ttie true line, m so far as by
t*oj>ery it is not interrupted ; with 8uc!i a
proof of their aljhorrence of episcopacy, as
mav make tUeni take up an antipathy at their
prelatical viay of having no sooner power ia
their hand«, but inttuntly, with oaths, tleclara*
tion^^and bomh, tiyiui* like as many wild cats,
in the throat of our consciences ; and that tliey,
Preiihyterians, would rather lake a more jfos-
pel wuy of instructing us in love and nifvk*
ness, at^i m imticrice watt, till by the use af
means, and tltc»r affectionate canisgo towards
1
us, wp be won to the disce
^ilon of those (hing^ji, ihM ar
wherein wedilVci% -''"I "t'^
say, Amen. Tl.«
and peace ; and i
prelacy and ^^>i^\^ S*w
perswa-
tnenttls,
fiij^esty
V , tmity
J
-»4
Jill iiMi nriiniir iifiina^ '.loiier :lii*r rfmnuuiii
jiu-r ^-rrtnt luwev. xa\i Ttie ^JiiMuentitnis !::>
Linibc n im lusiM! ne't'* -iiuii«» l i^-tiiar tiui
uie nurqiiis ir Htmimife. -T'lti » i TtHTiiii] n
.r^Kii UiUDur iQJ jfnuuiui juii rurvnn iir ii«v
SUttSKItttr -r*!™:!!. -nilUU JUi*** n^HUr-.i lU t^H"!
iiisMS luieaw Her luue -Jeui ^iint:!efii ruus«:
rur he «iiie. uxu i :aiiiHit jr imu^ruMi ir ji-r-
juinv*! tuu .ic^' la^ixnr tie luouur n «n'4i ju
ouut-^e u nmiuuHuimu. niivsRf vniua xranc
a«aM» 11 Qe ibinmeui uiti ii>^iiiiiL*a if Jis
aiiiNstXKt -ier*TL'v. su tun ijer « in Hiar Tnm
*ue DU-JiiTembaL'e ir^*a. inu r aumut w
«r»nini\-#«TTe'i lui ue iiunmis» n* HiimmsHs ip
luv "iiniuuHfHiuai »ine?r iiiipr jt;r*2 mifsvHi
lUll IMHIMi'l IT Ji» TOIUI U Itt -tlOlllcnt ilt.
JUII -Till \i bk-^- a-; ui^TrumuGUiiiu! m
ubiW!Ttuit> . nil I r»>r ufuu^c ul laiiiMi liia
Kift*>«^. rruiici Hr Ufn :u tiivM! lumtsiiaiey
imttr 'n«r "inuiiaati. ^kihiuu im le *2U»n«r3iir
.i\i.'*i«*'. tiu N* lie awes uiu .nintunim if ul
'.uiu<ii>. leiuvT ulow««i ni ^ffr^ rjimniaiMuiiac
■imirr- uiiiUf inH:aui:uuiu» ii;&i ▼v^'iiiiNii-^lie
•!utu:iit'«t. liii av lu 'V'sKTaim m :oiiiiiiiMUiimc
iini'rp*. % i^- at V nurii wi ut n 'Ui» tvm.
»-u*.r! # I'.'iit t»i*-" writ--. -Ukt lein^ ivUlilUC
uurK •r»u:iii— Drii or oiMrrvr tini,r!r> u ^rmv
«QU8«*» *-i!v':i ver i«*er xMiunvHrrc-a hit
iraivirii u :u«:jfu»n. »n*' ti*-" im i»'» CTcjse
'Cysc 'J %.iim ntv rer x'^uJit*^- L ■•■?*«» ne
narrv..-:' -. "U.mr»»'j« »:--^.aiiiiiv lI•-«^'u•J•l"•••ln-
llaL• .r ■: Ufc -flv^. uxu t> •ifin.»«i -w us
»r«^'-fl Ltr Kk! '2-jA «r;» IP -■n.^t tiieu 'llt;^*
n»ii!!r'ut-i ver ■»»*rni»iauu ^u iiu uiiMir iiah
.t>rr:u.^ . ^^ . i ; *i»^ nnii i /-jmiuiMMvinc
riv -1 *..-.^u -.yc*:**^ Jill racontr nerKm^r in-
r.c-; ? i\- •••" r vr i"".l::««* u awtt »av
Us.- :i :.»•! ■^■*- V- : •. viir«v tis*?, *»-
■•- :i. . ■ . -^ :. '.: -'"ws.-i 'ti'i:'.r»»>*f. .f— jilur
I :. - .tj<^. i^«. :::^ LiU I'la lUlcMIbb
ft'r- .:• "• •: : — '^r ;:.'-»i. Ur!»e w»-ii U'Wtv-utfi
.'.'7" :. ..^ :. »»■«• ?«uaia«r«i v^ia i_a
: i-' .' «. -.-.t.-
u:;:e
e ii- •■■ ■.. -. r- -r, — . Z r »..
■ .. ■• ■:« ':■■-. - - ■ ■ : .■ r-'M-v-e
f.. US' ".i " n ,-;• ,T- . ,r. ... ,1.
usr.u: . t r'.r*-'! *•■ . . ■^-.•:. • ,.' .mnu":
»T 2is iiir-t .:•■:■ ... rannrir ■ I-: — -nii
ain. A T 2i *■-. fill tr. ".e snii'.:. -s '.o-
■Hnr». -fiin «v ■ .,. •^nn'-s .jznttie .-mr^^s fMjur
Jr-~ ^B* »niv Tme-i ^*snita •>iii« wines.
-niOK ::itf L-umir mit uiniBiiiiiff
i'i. ZiH^ jtf laiiis ii?t3 imt ail irfuflr kLMiiA
11 "iiiir lar'niw! in* w ih imttflr^iniiit v.ca cais
■Rjniixiiiiix. *liat :uH iniiiiwiB 'ii; a-v^iilm m^^r-
istff. uiii tj mr! i«nT-«: mariiey w»r u.»-
iiiliii ^::(mrvi. r!iH irMrBmannu. Jitc Htsm^
•inmuc ic iiH nsmmc •t'ii^s if C«mnar. vtiiidk
H t'.e ji!3ii nirrnrt ifix»s hi-]"^. li'i c Msar
Jtt. EiRD lie iii*finiKrf nniiit loiiw 3i die
'<au«v«tie*iir^ ir' ui ubyvf innn tne '"mi i» OK
iiuniiic in Iim «u<w luis if mrtmneni^ j^n ifttt
TT^e if "tie iiuii;iiur ^iH^jf -a :tie pbc'MS rf
i:n:r rallies iii* ir«r. 31s iiu]irfBe anile nr
AmiiiniT iirr^s ir jnniKiIe*! vmj . inc jil iiiB
iUDHwa n yjix if noeiliini itfrvrrzr 'Haob
uiu iRRcsn. 'V'ltiiiiiT iihain!TXfNi if lenuiraL
v*sr yiiw"^T!'i 19 Hteait ^luft 3iu{t<!Kii» himc :
luw ji» nuiesntt m^iiir t iciniuiii;
IDH iie villi* iHi ikHB ir luriansKiit Jiaiiip datt
*Tiniiauin] 11 "iiiic le^r ruiHiiniiiuD it'JUi mi^
inB. r 'liiipE "u •CEoniflr He iefiHiiitffai Mem^
iiM aiiiim mi inuii ^nar •muixps jiui ox-
leBseK imi :ue na^e if x won !br •^awBO^
tt lie n-rTior«.
w. 3'* lis naii*?t:i-* n-KSTOB jct'if "iBiiBm—
line, tie imniuuls ur* kk'iqTO» iiiiiiini jbA
uttiii I rmiaane me ssic^am •ft unvvs. «^
He sume s nny if 4Ut.*u » liii SK hhk ou
DiuvKitr 1 luR.' io iiar -liii in^ «tr jiic nr-
^uailie ir*"M2n. -tk fucsx n -tiein yi <Kac •mc
iier -Rfr^^ims mu lur^vs uii tna^y anx *iai
nuiMQi^ iirst. inu m rmnoi Tmm^ ui ttos
in«wrTe»is^ li me nunpc -sRwcTailie *'iin^
lu u'^zieniv riiinnumi& ul 11& ;uii^«^iiir^ in
Durryns ue ^aia ics.
iiif. 't » irfvrr't jn w irnvfoi. imr linmi ;li«
"^'ne IT tu uuescm inir*HinanuB. Mr* L^ni
'.'uov^Iar ixrnc •nsii'-Hiain'i ii ii» niif
7"s ir?T-»- -jimisil He rimniiiii ir vne raTiv .aT
7' :*. im! nui Ufef w^r rimimaiei if itiiwii
:>--: nv-riiu:^ lu mu K>*m, riH-iusr imansjait
uii-".:r:rTi::r ii.r»««s rr L e«.ter uxma. 11 -ny
..rn ^.-'TTUTc "»"• 'nYuize *2niT'HMni n tMte^
^Iora i» 1UL3 "ht?r ivrn?-* ii'ifMeff:*! ir '•i^
u. i.:ue icii ^nazn ue 'rnuxir*'. UM 11 :k
rai-ie !r'-T ■jL^^-ftowmeai TTfa 'ne -utmif »--
127.1 -s»t:r. iiae tm -ncn t "u*- -i«iu:s i«
vij : L-. -- r.rir i'jj-ws siDilea Trtii: ntdD. 'W
T»r-» 'cr.Ti-^^.v^ mir: or TTl^•sii '*i^rn p ^^
-."=:;:•■ .-•Ttf. tvJ:~^ n«t •HEttr r»»fii i.-* nun
>^'i- xi' r.ir %.-re"iC2a j« >riM«»#:nj«i,
ei:" 3C -017 i;!i«rni:i= r-int ,iig^- u-v .
i-*!*:. ,r . ... t.'.s*- ill u:?s. uai mu »i
-ns r- ■-u:»*'-'iirii:::ai- -race Q
•ni"' He —r*ni: 'i ontt iaa.v»-: be
■t :ae-fjav«< via mx jm* o juiiiip 1
jTtnisc -cvptia '•on "^iinik JMm -m
ft'i] /or Abitnct/ram the King^i
To tlie fiec«»D<1» it is answered, That the
proclamation was 90 notii1l^f1f that public ran-
tk'vou:£f^ did Uici^upon eusewe tbrowe all
Scotland.
To tli€! 3d, Tlie militia is not txdiisive of,
hut canbi*it«i»t niili i\m (eudall aod natiooal
duty, tliQt lyes u|>on crery heritor, and has
%'i3ry juiitUc b^en cverfouod so, and is tiatioraJie
litquiesced to by the people who since thooa
act^fov the militia have cotiie out, and we see
that both iiiililia and heritors are litle enoujcrh
for our deiience ; lykeaa by the 25 act S sess,
1 par. Ch. 2d, wherein the niiUtia is granted,
it if* d»<elaired that the kingdoine shall Ije
reii'M ' St sixtie and mxteiu it' his majestic
>hvi t der use for them.
'In the nnirih, it uefds no answer; and, to
the fytih, it deserves no ans^ver, ejtcept the
letter wer jiroduced, for private men carmot
make up the tenor of letters from tlie counciil,
which must be known and ex(»oncd by the
context I as to the sense of which private men
may be uMt*taken ; but to shew his majesties
juiitire, it is found relevant of consent that per-
sons wcT unable to trnvell, hkeas it is found re-
levHut of consent that their horsc-s wer taken
away, eo that they could not i^oe, they having^
done exact dilijjence to get other horses and
taking- their declarations to ^bow that the
hor»es wer not taken away by tbeir own con-
nitaucc, wherliy each Tnau' might fumiJih
himxt'lf with an defence by causing' his horse
be taken nwny, and without thistlier is no pos-
sibir' ' ' low what was counivaucc.
•^ LiKkhurt duplies for ihe pannels,
tlj;u rcuces ^tMnd relevant notwithstand-
ing of the reply e, for as to the acts of parlia*
tiient Jybelle<l on, they doc not at all concern
the case of parlies not coitiino^ to the king^^s
hoiit, which by e\j»ri.-sae and po«iti%e act& of
purlinment in K. Afejtandcr t2, and K. Hobert
1, lytue^ IS dHyuedt stated, and iletermined ;
and lieio^ H stattitorie pufiiidmieut, it cannot be
C3CC€edit unlcfe^ thcr wer a (posterior act of par-
ti aiuent im|w»8in^ a (rrrater punishment upon
lh(? ^inie cryrne, particularlio condescendil on,
it 1> nripk- %n law Uiut *■ in totojure ge*
* i> r<!tt.>iii dero^aniur/ and wher laws
ni' tid defynes and considers cryraea
pLu it [*|U. and] doc» impose specific
IHJ ' •" J^"- >^ Mfie, siibse()ue4it general
as ntieut are nefer uDftor-
Ax to ihe Kccond, the defence it is most rale-
▼ant that by thu nets of parliatuctii fotindit
kU, and ull otlii^TS, it \h e%i'r requyr^ iw ane
>n*^.f roTjitition thereof that (tcivons should
l»t' and unlcsse it wer allc<l^ed that
hi -( pn>i*btiiatiou was intimate and
p>' Ompar, lb*? head hur^U of ttie
ah 1% thcr waa 00 ftitlTicient intitna-
tit'ii ' lion itself does txprt^slic
ptr ri 1 ;iii(| rci^uvrc intuuatton
1- lii^paii-
fiiU .».*. ^*i ,i*^.t.., «ii,.t. ... ..,...,.;.», »iut to goe
iiAli9SfitbepnK:liiiuitioiis bud been so published^
Ho$L
A. D. l6S0.
▼am
An to the third, it is replyed, That the acts of
parliattieiit establishing: the militia are opponed
which relate to and are foondit upon the former
acts of iiarl lament, and particularlie (hat aei ,
of kinvC James 3. lylielled upon ; and althoo^^
it is not contraverted, but tliat notwithstanduifif <
of the establishment of the militia, his nmjestie
may rcijuyre all fcnsible men, betwixt Mxteia
an*l sixtie,' torcpaireio his host, ia which jcasdi
heritors who undergoe the trouble and expeoie'^
of the mihtia cannot excuse themseWes; yet
ther being no such general proclamatioDi can-
ing- all fencible men, hut only calling heritors ^
and their followers in the particular shires men- i
lioned in the proclamation, the ebtablisbmenlj
of the militia oug-ht to exoner the heritors, ex* ]
ccpt iu the common case that his majestic 1
thoufrht (\i to call all hk subjects conforme ta|
the old acts of parliament.
As to the act of indemnitie, oppons the same,
and referrs the consideration therof to the,
lords; and the presence of tlie militia forces |
ought to exoner, and most he looked upon, a«|
ane a^istance, so as to give the beneOtt of thej
act of indemnitie.
As to the last, repeits and oppons the de*
fence and the lords of prii'ie councill having J
wreitien a letter of the tenor, mentioned in the J
defence, and upon the consideration of the ha-I
7,ard that the rebellion mi^ht break out in thalj
countrey, the pannalls who are able to fountll
upon the termes of the said letter, ought to bol
e?t:cused, and it is positivlic ofl'eretl to b«J
proven, that as to tlie persons to be condescendil I
upon ther gY>ods, wer rifled and tber hon»etl
robbed, wherby they wer incajtable to repair Uki
his majesties army, and the pretence of ijiniu-»j
lation is nowaycs relevant, unUifse ti v^er pro«i
poufHl positive," and offered to be proven, and if
need beis the pannalU arc content to purge
themselves by ther oath, that ther wa** no 8i<«
mulalion, butthat ther liorses were r^tbbed, anilj
so they have clearlte the br^nefitt of the lords <
privie councill tb*'r letter, and it will clearlia|
appeir by the probation, to be led tipoa iba
exculpation, ami cannot hut consist ia tfai
knowU'flj^e of such of the lords of justiciarie i
are upon the privie councill, tlmt the said Irtter J
w«H ivrf»lt to my lord Newark, and who beiti'*
called, may be able to produce the same, ai
by the councill bookcs, it will appeir ther is a]
warrand from the councill to the chancellor tO|
wreitt to the lord Newark for securing^ th
peace of the countrey.
litterloquitor upon the General Defences
The lonls justice jrenenil, juslic*e clerk, and
commissioners of Ju>uciarie, having tonsi*,
dcreil the lyWIl and dthste, ib*'V r«"pill th
fip«t, thini, ao'l fourth detrnoci*
The hnU also repel I the S4 .
respect of the 1 1 uiao» n-/ me h^rdl
Newark at Iht^ r of the militia con-]
forme to the Uhm; ^ 1 -rr"* - • jnd o(
his appuyittui^ kuf 1 :itormJ
at Levui, which ac4^^.^*;.^..^. «*«-« ^^<^\ by a
J7J
32 CHARLES IL Proeee^gi agMinit tie HfesMre Heriiart, [fl
As to the fyft defen'^ fouodit upon the
[qu. Ciiuncellors] letter, the lords superseid to
give (letur mi nation tlierupoD, as it is proposed
in gcncrall for all, re&erviag to tliemseWes to
determine thcrupon as occurs in particular.
TuE Particular Qefemcei.
Kilbrachmont,
Mr. William Monypennie^ for Hamiltoun, of
Kilbrachmont, alleadg^, That the tyme of his
majesties proclamation, his horses being not
only stollcn from him, but his servants deadlie
sick, yet such was his zeall for his majesties
service, that he went to Faulklaud markat and
furnished himself with horses, and did come
the length of the South-ferrie, and tar^-ed ther
two dayes, and returned witli the rest of the
gentlemen efler the rebells wer defate, and is
content to take the declaration.
Deserted at to Menttrie,
Mr. William Hamilton, for Howburne, of
Menstrie, alleadges, he is past tlie age of sexUe
years and is not sensible, [qu. fcncibic]] and
sent out his meu and horse, who attcudit his
majesties host ull the tyme.
The lords tiud this detence relevant, and in
respect of the nottoriotie of the defender's being
past the age of sextie years deserted, and l)e
thir presents deserts the dvct simpliciter, and
discharges the raising or taking up of any new
letters or dittay agaiuest the defender, iiir the
cryme above specifit, in tyme comi:ig, wher-
upon he asked and took instruments and pro-
tested for his cautioners relieff, which the^saids
lords admitted.
Largo adAssisam,
Mr. William Moniepennic, for Durhame, of
Itart^o, alleadges, Tliat the tyme of his ma-
jesties proclamation, his house was assaulted in
the night tyme by several armed men, who
threateiic'd to putt Vyre to it, nnd who did nc-
tuaiiie take away Ins hordes and his furniture,
anti he did endeavour to furuialie himself, and
did iidd outune of his own hur^eiii which he of-
fered to reilcem at any rate, but he could not
have tliem ; aud he otl't^rs to purge himself, by
ane soleiiiii oath, tliat thore uus no collusion
between liiin and the rebells, but that his hoi*ses
were furcildie taken awny.
31y Lord Advocai answers, That the doR-nce
ought to be repelled as to that which may be
collusion, t:.\'cr|)t the person purge hunself by
takiug the dec-Iuration, thcr being nothing more
easie then to disNcmble anil cover this collusion
by oath ; some friends and relations maj^ all-
wa}cs cause take away a mau^s horses without
hisown ex[>n>«i<k; knowledge, so that the event
should be that only men of lovifll principles
should as ant- reward of ther loyaltic be ex-
posed to all the danger, and put to ull tlie trouble
of opposeing, Iwth by ther indeavours in tyme
of peace, and by ther arroes in tyme of ware,
whilst these who are of pernitious principles,
shouhl Iwve thcr crymes made a protection to
them, againest all those troubles and ezpences.
Mr. William Moniepennie raplycs. That ths
detence stands relevant, uulesse nis Miyesties
Ad»ocat will positively allead^ that the dts*
fender diti actuallie collud with the robbsm^
which is found relevant of consent to be pro? sd,
SAd his ofifering to purge himself by bis nath is
su^cieut of itself without taking the declaim*
tion, unlesse my lord advocat will poskivelis
offer to prove simulation.
Bruntoun ad Auitam.
Mr. Trt7/iam£ea/on,forLawo, ofBruntoiu,
produces two testificats, ane under the hand si
the minister and elders of the parrodi who* he
lives, and the other ander a phisitiaQ's hand,
bearing his sickness all the tyme, and bendss
he is |>ast the date of sextie years.
Di/et desertedj and Letters discharged againU
Captain Murray,
]\Tr. Colin M'Kemie^ for Captain Gidesa
Mun-ay, ol' Pitkerrie, allead^ he is past thn-
score years of age, and for instructing theraf,
produced the indenturs past, betwixtliim and
William Miiir, merchant in £dinbuigh, dated
the eletinth of Jaimary, 163r ; and iarder
allcadged, that he was sick and unwell, all the
tyme of the host, of a dan^rous sicknes, so that
he was liker to dye then hve, and produced two
testiticats for proving therof, one under the
hands of Dr. Craw turd and liavid Pringle,
cbirurgeon, and the other uuder the bauds of
the miuistei-s and eldei-s of Kikeny. The
lords in respect of the nottoritie of thir defenoes
deserted, and be thir presents deserts the dyet,
simpliciter, and discharges all new letters or
diltay to he taken up or raised agaiuest the.de-
fender for the cryme forsaid in tymo coming,
wherupon he asked and took instruments, and
protested for his cautioners relieff, which tbi
saids lords admitted.
BaUanquhill ad Assisam.
Mr. Alfjander Mnleolme, tor BalcaDqahiO,
of that Ilk, alleadges, that tlie tyme of dm
proclamation his horses wer taken away.
Sawfoord ad Assisum.
Mr. William Moniepennie^ for Nairn, of
Saiufoord, alleadges, that he bavins upon his
majesties Proclamation sent out three mcD
with horses to sene his majestic, in respect Iw
could not attend himself, being ane foot cap-
tain of militia, and having thcrettcr endeavonred
to convein his comiKUi^, could only raise the
number of ten men, which being offered to tiie
earlc of Weymcs, coUoncl of tlie reffiment
by tlie defender himself, he adjoyned them to
another com]»auie, so that the defender couU
not serve his majestic in the quality of ana
heritor, his horses being sent awuy.
Glenicston ad Assisam,
Mr. David Deicar^ for Weyraes, oi* Gle-
niestoun, repeits the samen defences proponed
forSamtbord.
Ily Lord Advocate alUeadgesi the
fm- AhwnttJT&m ike Kki^M fh$it
A.D. 1680.
[SO
hiide wilnotit
no m^n (hty
3 any
•tj trj
. .- lyme
il nowivs f^tevant, for tlie? sbodd hare gone
to the tost with 1h ' ' "
collors, and tlioii£rlt
V(.
,thal *. , .t.,>. ..^, i, ......
Principle of disloqunlitie or <1
Ofli
j try^T lid hufifie: g-ooe
I lome way tu attemlf niHviith^tumlitig^ of her
indispofiition, heing' \i\^r nith chrfd, >€t she
did frtllowe hiiD a curv ^* Hy» with wove*
ml onthit that sIk! ^^ > ^ leave him^ and
she dyed hrr blooU vrouUl l>e on hii hemd,
id m aaagerous wai her condition that the
feW down In ihe i^&y, in n manifest hazanl of
•hortioD, so that he was neccssilat to return
witli a resolution, that if the wer any hetler
I be would repaire to his majesties h(»t, anddid
iceep his horse for that eff<K;t.
His Mujfsii^i Advctai makes no answer,
but that U\% absence appeirs to have bciu from
dissatistkction, soeiikg he rduses to take ths de-
claration.
It is proposed for Mr. Alcirandcr Nairn, of Liile
Treiertoun, that he was sick fit the tyme,
which is attested bj ane declamtiou under the
bund of the arch dean of St. Andrews, and
F that \m DKither KfFrents his wholl larnJa and
tiroduceil Xlwr lyflrtnl iiifeftment for instruct -
jn^ iherof, iind that he lives in the toiiu of Hi.
AudrewS) and watched and wardit ther, and
iitrer kct:pt a horse.
S( rat her lie ad At^isam,
Mr* James Graham, for Lundie, of Stni>
He, allead^es, that his horses wer all
I away, oikI he is content to take ibe de-
tion for lestitieing hii loyalde,
Itrdie ad Ai$i9<im.
Mr. Wiiiiam Mmiepennie, for Georg-e Mon-
criff» of Re*lie» alleadges, that the lyme of
ihc Prot Uin»ation, notwith^tandin^f bis Inily
was extreuiche sick, \et he was i^o '/imlotis to
* menet his rnajc^iie tfmt he keept the first ren-
I devouze, and did actualHe send forth ane young-
I i^ntleniau, im own broihiT-iO'lawe) who was
f not ivnc heritor InmHelf, and was a trained soul-
dier, with this condition that he shotdd serve
id ihe defeijder^s name^ and if he Hhttcitd not he
l>ccavc-d i\\ lii^ niihHtitutfthat he should return
the sauH* 111 lit- 111 It \u iiii«rhi q-ne himself, and
he wa» ;i
Mr, J . ir James Hinclair,
of Kirinmii}, in; was sick and in*
firme .ittU** t\ i it out hor>€ and men,
and proilurew its, onv from the loi-
fiiHivnif and i^- m the phisitian, ibr
provein^ then^oi, aud i» oontcnt to lake Ihe
declaruti^m.
It was allevilppeit ' ^ • ■
! demie's soil and a*
I at thctymc, h* wa** - ju htm hi i h-^tiuj ynu luui
I bis bone was takou £rom his son.
L
Phinmont dtscrtt ttnd diickargti Letttn.
It h alledged for itrown, of Pbinttoitt, tblff
he IS past sextie years of age.
The lords in respect of the nottonctie oftbii
defence deserts the dyet, and dischai-^es all
newe letters or dittay againest the defender far
the cry me abore specifit in tyme ooming.
Pitlochie ad Auinm^'
It is alleadge<l for' Murray, of Pillochie^
^riiat he is no heritor, nor keept he a hnrstt
this tweke years, anil he is readie to renounce
his heritage in the king^st favours*
My Lord Adtocnt nnswers that ane heritor
by the courtisie of Bcotland is in all respect!
ane heritor, the conrtisie being a legal I dispen-
sation daring the lyme, as a comprysing is,
and therfor seeing he is in fcudohe^ should
serre upon the aocount of hts feudatortc obli*
gation.
It is replyedi that the Proclamation is op*
pOQed which calls only bentors and free-
holders, and ihe pannal is neither baitor nor
free holder.
The adf ocat dupip, that the courtisic is/eu-
dum ad lempus^ and consequently he that has li
is duiing the tyme ane heritor.
Kyninmond ad Assitam,
Mr. Jama Aleiandcrt for the laird of Kynto-
rnonil^ alleadges, be was sick at the tym«
as ane teslificat upon souU and conscience,
under the ministers hand testifies, and a decla-
ration under the phisitians, which is sufficient ;
lykeas he has raised exculpation and cited
witnesses, who are able to prote that hs
hor?!s'd his brother- in -I awe the laird of Karas,
whose horfses were stollen, and that he s«nl
another horse and his own mun, well armed
who attend it this majestie^s bott, ayi and vvbtU
the rebels wer defute.
Mr, Dcitid Dettar^ for W«ymes, of Glenies*
toun, allcsdges alsOi that he was sick and sent
out his xnt^u and horse armed.
My Lord Advocat answers the tame is not
relevant, piTsonall [iresence being requyred,
and the defender refuses to take the declaration.
Graingmyn deserti and discharges LeiUrg^
Mr. Alexander Maicolme^ for Robert Kin*
net 11^ of Graingmynfi, alteadges he is a mean
herilor not excet'ding ane hmidredth n^erkf,
and nut being abte to furnish a horse, he ther-
for went on foot The lords therfor deserted^
and be their prrsents ['pi, dpsert or de^^erts] ttic
dvet simplicilor and fUnchHrges all lelfer^ or
dittny agftiufit the defender for the cry me obofi
specjfit in tyme coming.
Dowhiil coniinufd.
I Mr, n«/ for John Lindcsay, of
OowhiTI, n! 1 hat at the fvme of the
• ' ' ' ''» ' T. of
alt
*
31]
32 CHARLES IL PtocmUngM agaitui the FiftMre Heriion, [ST
tcntetl Lc hade bein taken prisoner, oat of his
own boiuc at Culrose, and all his arms were
takim from hifn, so that when he was sett at
lil>vrtic, he was putt under the forsaid caution to
attend all the dyets of the proces, and so was
under an absolute necessity to wait the coun-
cil! *n fard«T order, seeing the proces was only
c«)iitinucd from day to (by, and if he hade not
nppcired at e?ery day he would not only bein
declared fufritive, but his cautioner would have
fuHiiult the 10,000 merks.
Mv Lord Advocat answers, That 1. He
should have made application to the councill,
dosyrein]^ to knowe what should he his cariage :
'2. The proclamation would have defended
liim if he hade g^ne, and beings the posterior
order took off all former restitiint: 3. This
viiiui be no defence why he sent not out his
nifu viiice the councill aid not disarme them.
Thi! lords continues the dyet againest John
liiuihay, of Dowhill, till the thud Monday of
June nixt.
Bandon ad Assisam,
Mr. WilUam Beaton^ for David Beaton, of
lluniloii, alluailgfcs. That hiswvHTwas at the
poynt of death, and he sent out ooth horse and
liMit, a.4 a testificat under the lievtenaiits hand
ti'Mtitii's, and be is content to take the de-
claration.
Baibirne ad Assisam,
Mr. James Alexander^ for Balfour of Bai-
birne, ullrad|(es he was sick at the time, as ane
Itwtittcat prmloced bears, and the horse he pro-
vidit was taken from him, and he is content to
^Ito the declaration.
Fordcll ad Asiisam.
Mr. WillituH Beaton, for sir John Henry-
IM, of Forilell, alleadges he stnt out three
hoiw" and three men, and at lh:it tiri.c lie was
unabW to iravcH, as anetestificat under the mi-
ttMtna hand bean, and its nottor he was not
^t ihirthiw years bygone todraweon aiic
^at ' Ktotf he was one of the ^^entlrmpu a.'-
wTJiitt ilav al borne by the councill's letter,
uJSlby the Lonl Chancellar, as a person iin-
iSllK i^nif totka host, be reason of his cor-
ttaWnck' ittdi niftnniha«
Ctumgmy ad Assisam.
Mf Ditid Dowr. forMdvill, of Cassin-
Z iSlJ^U»««»«* license for him
ViTwSS teiiya^*'®'"® lie wanting
h
•L
Ofi
of y
wfaiU
•houh.
tbem, I
IVi^rti tad *»*»«« ^"«''-
W ^ «mM fcr Wbert Cuninghame, of
4ta«iiwMto«MM
lb«»ti«MftW^ltairfteBurgh,
01 to
the saids Robert Cunninghame and Henij
Shanks, and diacliaiges all new letters or dittay
againest them, for the cryme forsaid in tyme
coming.
Mr. William Moniepennie, for Mitch^, of
Balbardie, allcdges. That he being conveined
befor the circuit at Coupar, he proponed a re-
levant essoney, which was proven to the jndgct
so as to him it is res judicata,
Mr. John Lauder, for Mr. Charles Wmrdkw,
propons the same defence.
His Majesties Advocate takes instmmenta
that the haill pannels, except Hay of Be-
houssie, do judicially confesse their- abaenoe
from his Majesties host.
The Lords continue the diet till the twenty
fift instant, and ordains parties witnesses and
assizers to attend.
Interloquilor upon the particular jyefenees^
25th February, 1680.
The lords justice s^eneral and commissioners
of justiciary find tne defence proponed for
Thomas Hay, of Balhoussie, foundit upon the
passe relevant ; as also find the defences pro-
poned for Robert Hamilton, of Kilbrachmont,
Janicts T/dw, of Bruntoun, Mr. Alex. Nairn, of
Little Friertoun, Lundie, of Strath'eriie, sir.
James Sinclair, of Kynnaird, Kynninmond, of
that Ilk, David Beaton, of Bandon, sir John
Henryson, of Fordell, Rolwert Balfour, of Bal-
bimic, and James Melvill, of Cassengray*
lykcways relevant and remitts the same to the
knowledge of the assize ; as also finda the de-
fences proponed for Alexander Durhame, of
Lai'go, Charles Cowan, of Corstoun, David
Balcanquhill, of that Ilk, Alexander Nairn, of
Sainioord, George MoncriefT, of Redie, and
Janios Weymes, of Gleniostoun, relevant to
alcviat the punishment, though not to elied the
\y\)iA\ according to his majesties gracious
letter and rcmitu the same to the knowledge
of the assize.
The IokIs repell the defences proponed for
James Young, of Kirktoun, and Murray, of
Pitlochie.
ASSIZA.
Hamilton, of Ilaploch.
John Stewart, nf (sairntullie.
Gordon, of Cairnborrow-
Mr. Robert lr\in, of Peilsyre.
Geo. Drununoiid, of Milunabb.
Patrick Tailzfer, merchant.
I'atrick Smith, of Methven.
John Mont^romerie, merchant.
Duncan MMntosh, merchant. ^
John Brown, merchant. '
Josf^ph Marjorilwinks, of T^icnchie.
. liiiird, of Sauchtounhall, younger.
I Robertson, of Strowan.
Kinloch, of Bandoch.
Charles Maitland, of Pitrichie.
The Assize lawfuUie sworn, no objeetion ia
theoontrair.
SS]
/or Ahiener/rom the Kin^'t Uo»t.
A.D. 1660.
r«
^
II IK Mttjtitm AdfiKate took rnstniiticMitfl
llnMt-'- " \*.,....A. «^'i'— -rieJiiKlc
lb a .. ,- -,.„., .....^v, ^.. ,.. curling of
tltcsaiuen.
Tilt' clcfciiders for proreing oflheirionocHnire
ami gx*>ui^^s <>i' exculpation, adttuccd the wit-
ncs^ifs uuti oilier C'fiilence after mentioned, vie,
Put^kh Murfa^^M of Aiichtertyreragied 32
Years, unmarried, purg^ and swor ne, depones,
That he saw Thomaa Hay, of BulbouEie in the
king^'s host, in summer la§l, and that to the
b€«t of ht!i knowledge he was tti bade condt-
tione oi health, and that if he hade stayed be
Mroutd have heen in danger be rt^a^ou uf sick*
«, and that he sia^^e ui in coining offiu thi«
£le condition y and that he liaue him have the
rquis of Montrose pits«ie^ uho Has bis rap-
lain , and that he leii three or tbur i?ieii well
appointed behind him iti the army vuuta ttt*
tnUa he was present, and this ia tbe^ truth
as be shall answer to God.
Sk SulfKnUhir^ P. MifHRiv.
Hf, T%omQi Ste&tirt^ mn to Mr. Hary Stew-
art, in Fearth^ purg^ed and tfworne, depona cnn*
formi$ pri'cedrnfi, except that be did cot see
the paii^f an<l kno\vt« that he bade two horses
left bdiiud with the Unsi at least, and did Tiot
iee him come off ; and that to his knowkd^^e
ontd have endang
Sk Suhscnbitttry
[idfje
libstayinj^ wontd have endangered liis healtli.
Mr. Rohert Colt^ for fardcr probation, re»
Tieatia the tnaiquii^ uf ?^luntn>se pasae, and
lifjence to thu pririnell to return home.
David loni Neuurk hein|| irworue, depons,
that it was the common repuft of the country
that Uobert ilamiltou of Kilbrachmonts^
hciraef were taken away, and that be sa^ve bim
Qotnini^ on his toot to the rantlevou^e to tell
tbis, caum ti^mntia'j he is hbuear neiiibbour.
Sk Sutfucrilfitury Nev^ark.
Jam^t Mehilif of Cassinofray, beiny so-
lemnlte sworne, depona, he aaw two of fJamil-
ton of Kilbrocbmonts* horses to the rebella
bawbf who robed bun, the foresaid rebelb
having come to Ins bouse to have robbed the
deponent's bor^ca*
Sk Su Ific ribitufy J AM cs 51 ELVUX.
The said Robert Hamilton producetl lyke*
ways ane testificate under tbr band of Mr.
Wra* IJay, muiJstcr uf Kilcoui[uor, testineingf
that be iit ane orderlie person and tberi'^lTrr cf
the regular and orthodox i ler^^te, and that bis
bontes Her robb'd and ser^ant^ sick the tyiue
of the bo*t, and yet recruited himself and ad-
vanced some con^ulmMi- part of the way till
he heard th* ste.
Jfimti Cti r of V'yiT, depooa
be uawe L#ft ' Tie sick
tbf^ day of 1 1 . i n doctor
who was will I i It was the misles,
$a /«r, J. CuAiJFoao.
lU^crl Balfuur^ at Dalbimo, btiof iwome,
VOL. M
depons be sawe I^we, of Bruntouo, lytiing'
aidk the tymeof the bust^ and Ueiii)( bedtait,
' Sk Sttbtvrihtiur^ ^. JiAi.roua,
Ti,p ~ii 1^.-^^^ r- r* f' '-ntn^ pro-
duce'! uich, ani'i
Dr. A.. .. i..».v..., ., .. .. iiooii bt*i
being sick of the meaails the tyme «>f fhw bost^,]
Mr. Wii' v ";hV, for>Ir *^'
der Nairn, ' », rciuitn i
ofDunkeir.v x .. -..h.vi.-.i ,,.^ ;,f
the hfist ufion snal an it b« I
is ane well attacted jm , ^. , g»i- 1
Tcrnment, and lykways repeits bita rootber**']
lyfTrentiufel^tncDt,
Jfimcs Crctufurd^ collector of Fyfft dt-pon^t
That Stratheriie^ii brother's bortie and arm^ wer
taken away by llic rebells, and Stratberiii
hiniself was not io use to keep borse.
Sk SubtcribitMr, J. CftAuronn.
Jtsmet PKcoirnc^ initter, in Edinburijli^l
dcpons, That Htratherlie*B brother declared iaH
Dune that his horses and armes wer taken ^
a way by the rebel Is, and that this ^Fai tbi
oonrmun report of the country*
Sk Subicribliur^ James PncAiHNE.
Dr. Andrew Rtilfour depous, that be ^v% I
constant advise to sir Jnute^ HincUir, of Kyn- I
naird, the tymeof the host, be being' sick of]
aneaijfue at that tymc.
Sk SuOscnbitur^ A. Balfour.
B^bcrt Maitcr^ of Uur^blte, b<ing sworn e,i
de)M)n»i be gnwe sir Jauiest Sinclair's mallei
James Arnot and his horse, well armedi atteoil l
bis majestie^s host all the tymc.
$k Subs€ribitur, R, 0ALrot7R.
Mr, George Arnnt^ wreftter, in Erlinbufc^h^
depons sir Janicii Sinclair was sick and un^tH j
the tyme of the host, and not able to travell, I
and that he sent out his horse to the bust who^
stayed all the tyme.
Sk Subscribiiurt Geo. Arnot*
The said sir James Sinclair, in farfJer evi*
denoc of bis inuoceneie and defence, producetl ]
ane testificat of bis sicknes {ihe tymeof the ^
bi>»i) under the hand of Dr. Alexander BaU
four, and another under the hand of the mi- !
nister and ciders of Ebdie.
Colin Pitscottk^ son to genera II major Pits-
cottie, aged Ihretlie years, purged aniTsworne, ^
depont, that Ky uinmond ov that ilk wtkR so sick !
and unwell the tyme of the host that he wait
not nh\e to come abroad* and that he sawe bipj
iiuraesat ihv ho^t at Bothviell-bridtne.
Sk SttbjicribiitJi\ Colin PrrscoTTii:,
Jantfi Ahercromhkj of T*och|fellic, swornek]
depons Ryuninmond of that ilk wai so unvi'ellj
the tyme of the host that lie o^ftil J not come J
abroad, and that be sent out bis bon»c to tbi
host,
Sk Suhicribitur^ J*mf*i AnEtimoMait,
Thcdefendei . m%i
testiticiitaud phi _ Licitin
unwell ail llv4 v^tsas ^V s.W>aS3ftiV'
\ ft
35]
32 CHARLES II. Prcuedmg§ againit th> FifeMrt Heritors, [9
John Henrysoa^ in Fordelgrein, defions, That
Bandon's man and horse, well armed, attendit
the host all the tyme.
Sic Subscribiiur^ J. Henderson.
Colin PilscoUie^ above designed, deponsthat
Eandon's man and horse well armed attendit the
bust all the tyme.
Sic Subscribiiur^
Colin PrrscorriE.
John Dempster^ of Pitliver, bein^ swome,
dcpons he knowes Fordell Henryson^s condi-
tion to be such that he was never sein him able
to loup on a borte, and knowea he sent out
bis men ami horse to the host.
Sic Subtcrihitur^ John Dempster.
Alexander Spitle, of Lencbat, depons be
knowes Fordell Henry son to be intirme and
unable to mount a horse without help, and that
Jif- st:nt out his men and horses to attend the
aic Huhcrihitar^ Alexander SprrrELL.
David licatpn^ of Bandon, being swome,
df'iKMiH tbstt the moneths of May and June last
Jii/bf-n lUlfour, of Balbirno, was sick and un*
M»- to K**^ ^" ^''" majesties host.
Sic Subscribiturj D. Betuun.
pavtfl Spitle^ servant to the minister of
Miirkirif^bt df^ivons Balbirno was sick and un-
■bUi to ifMVfrJl the tyme of tlie host, and he
orovidit Hn« b'»rsc to send to tlie host, but the
|ior*#- wan <«tollen and taken away by the re-
liilU, iirid III: f^annot wrvtt. , ^ ^
Sii SuhMt nhilur, CjEO. M'kenzie. I. P. D.
fuhn DfMf, sn^ant to the Idrd of Bruu-
biiiii dvMfUv.oni'onni%Ui DafidSpitlem wn-
•.i/i/zi HiidliiMfloiwilwreitt.
^''I^UrnbUur, «E0. M<«NZIE. I. P.D.
f.Miif t M' '"''. '^ ^>«s«*»nff™y » itt ^vindication
..I 1.1.1 iiiii'H «ii' «■ |ir«Hluf.td ane tesUficat, under
,|„. b»iHl "I l»tt»"> '''^«* Newark, whereof the
|4,|iiil IlillilW*'*
I |i5%lil Lord Newark, doe hereby testifie
!\ liHHi.ii vuuiufiiif to the nroclamaunn
* ;. ..no ittiidrvouzc with tfcerestofthe
?»'*': ; .1 " . vr... »"d he having told nic bis
II. IuUm ♦«i»" •••«■>'• *'^***^*' beuig well
"' ;:; : !:: I!;: «...! H.'- .^t ««• the gentTemen,
\ ^1,,., „,„ .l.«i..iHM-birn,andaHowe am
horse to have gott them restored, cmua smiifur,
he was working in the home at the tyme.
Sic SubMcribitury John Neilsow.
John Neilson, son to the said John Neilioi^
above designed, depons conformis to his father
and that the laird ofLargo wentwith achairged
carrabin eller the rebells to have gott back n\§
horse.
Sic Subtcribiturf John Neilsow.
Alexander Derhum^ of Duntarvie, depoiu hf
knowes the laird of Largo's horse was taka^i
away by the rebells.
George Scotf of Pitlochie, bemg swomey d^
pons that the voice of the oountiy was thai
Charles Cowan of Corstonn's horse waB|ake|i
by tlie rebells, and within two days thereAer
the said Charles came to the deponent and told
him one of his tennents hade taken the said
Charles horM, and when became homeheoon-
fest that bis liorse was in the company with
the rebells.
Sic Subscribiiur^ Geokob Scott.
John TFi/Ziamirm, servant to Pittonr, d^bns
he knowes Charles Cowan of CouratDon'a
horse was taken awav by the rdidls ; be can-
not wreitt.
Sic Subicribilury Geo. M'kenzib. I. P. D.
I
li».iii
u
George Scott, of Pitb>cbie, depons that he
heard Balcanqubill's horse was taken away, and
being walking in the tields be sawe some honea
witli the rebells, and one of the deponent's ser-
vants told him that one of these horses ba»
longed to Balcanquhill as he thought
Sic Subscribitur, George Scott.
The said John Williamson lykwayes depons,
that the common report of the oountrey wi^
that the laird of Balcanquhiirs horse was takea
away bytherebeUs.
Sic Subtcribiiur^ Geo. M'kenzie, I. P. D.
John Henryson, in Fordelgrein, depona
weymesof Glenistoun bade a man and luirat
armed at the host, who attendit aU the tyme.
5*c SubicribUur, J. Hensersom.
-4/€Tflrtflfer Bantkin,'^ servant to the laiid
otL^wchat, depons conformis to John He&.
ryson. **«w-
Sic Subscribitur, Alexander DaKskin. .
I t^t^^ ^^7^^"^ ^' Alexander NainTS
;;\;;;;,-7.p.H. hi- lady ;js^^^^^^^ I ^?S^wtt\tr "^' '^ '^"^ -^ ™«
written, wbertSfth'itiJ^^^ '»**
Tlicaeare testifidng tbit I ke^ntlh*^..^
dcvouzo at Coltoun, of bL^^wSL^MT
lufct, mnanie of Geoiie MoSTrfR^S- ''""•
broiher-in-lawe, wSTSrSf C^'&'^
cneff. bis servants, J^o;^^
.., , ^i, Mui ilii- '^••«-'''»** day Of October.
sl SHhtiubitur, Newark.
s^Hunhttur. Newark.
Jf7] fot Akicncefram the King-$
TO&rohetl Qitckrr my lord Nevrtrk'i GbtmnaniJ,
iwd rtlertvArti under the eurle uf BulrarraM
orminiaud, and i^uUiiued in llic bast tilt it vrus
dislMiidit by order ; and uU tbat in oh«>dicn cc
to hisi)iAjt'siiij^8 l^ruclaiuation fur my said Tiru-
tlivr-in-l&i»e. Iii t^nlitnohie wliCMXHif^ 1 have
Jiibscjibil tbir presents with my hand «U Aiicb-
Icnytie, tbis twenlie nynt of Se[ii€mber, 1679
years, liefof ibir Mritiiesses Joba MoncrieiT,
nottar iYubUct|i^reitter hertK)f; and 9^1 r. James
fiibbald, icboolm aster, at Auehlernitio.
Stc Snhfvribiturt Jg, MoNCRElFF.
P^THrcK Leni.ie^ (witnes.)
Wt Cot in enrlc of Bakarrat^ and David
lord Naeark attests the above wreitlen de-
clftration to be of ?eritie, as witnessc our sul»-
■criptinu ut Caupar of Vyii\ Ibc second day of
October 1679,
Sit Subicnbitur^ Dam; Alius, Ncwwark,
David Lord Newark upon oalb, udberes to
Hnf attustalion s^yen be blni in Georg^e Mnn-
criedTof Redic^a favours that tbe aaiaeu iabulb
mid veritie.
Sic SuhicriHiur^ >i£^wAiiK.
Jtihn Manvrifff of — — ■ — - — depons Atou-
Ci lie seut out \\\% bmther-in-lttWfi, to
tbt ^ i stwith this «Epi-ei4se condition, if be
^irer not nceepted of he would pro binisclf, cau$a
$cientitt^ he wast frith him, stnd heard as he has
disponed t
Sic Suhicriyuuft Jo. Mo?icREtFr,
Tkamtts Ciichnitf in Auchlermougbty, de-
Che know(!S iti^iie sent out bis brother- in-
to his inujestie's host with lUi* «?xpresse
condition, that if he wer not accepted id', he
would t|oe liimt^elf or «end bis aoo, and kuowes
lus lady was ^ick at the tyine.
StcSubscrtbitur^ TnouAAGiLcnntwr,
Tbe Lords ordaines tbe Assyse to inclose and
retume ther Verdict upon the 27lh inatant, and
ordaines nil jlortics to attend.
£7th February 1680,— The said day the
persons who past upon the absent bmtars from
IbehOftio FyH-shiref returned tber VenJict in
mttaoee of tbe sjuds lords, wbei-of the tenor
lolWeii: Edinburgh 25 Febniary 1&80.—
The Aatyse fiodn the ly b«U proven, us alaa tbe
Mivse be one voice lie the m<»uth of ther olmn-
Mifor Gcorve Drununond, tbiils the defenoc»
for Robert Hamilton, of Kilbmchmont, Jannes
! Lavvc, of Hui'moun, Sir. Alexander Nairn, of
f litldreirtoun, Lundy, of 8tratherlie,
aur James Sinclair, of KJniuiitl, Kinin-
Ipond, of that Ilk, Diivid Bcaloo of Bandoo,
m Jolm Henrysoti, of Fonldl, Robert Baltbur,
of Dalbirno, James Melvil), of CaMiDfrray, and
ThomaR Hay, of BolbmiAie, pannalU, contained
t in the tint claoe^ pniven, except Beaton, of
I Bamlttii^t McMHs or his n^ylTa sicknea, which
I |fc# viyse ih4$ noi proveD, bui the rest of th«
I tii4 Biilim of Budoii's defiBooe they tiud
5k Su^ri^.f Geo. DMMJiOND, Chat}.
Host. K D. 15S0« [SB
The Assyie be ot>c vtiice, be tlic mouf h of
Georpe Druramond, thcr^''^ ^* '■ ' ' ?.
defences for AlexandtT li
Charles Cowan, of Cor«lou»i, , .^. .,.
hiU» of that Ilk, Alexander Nairn, vi ,
lieor;Te Moncreilf, of Redie, »tu: _ . A ,
^Vt; yiues^ of (tleuMouii , pannalis coataitied m^
ihe second class, proven.
Sic Subicrib,, Geo. Drummo^d, Chan.
The Assyse all in one roice, be tbe mouth oTj
Georg^e Drummond, ther Chanecllar, tiudtf
James Yonn^, of Kirkloun, and Mur- 1
ray, uf Pitfocbic, t^fuilty of ibcr remaining, and
abydlng frae tbe king^s ho^^t in June last.
Sic Subtcrib., Geo. DtiuatMOND, Cbao.
EOer oppinitkg and reading of the wbilk i
verdict of Assyse, The lord>i justice gpnenil,!
justice clerk, and commissioner* ^t •*'*
absolved and assulyed, and lie il
aolves and aFsolyiei* the haill pi ■ d
in the first clB5»se from the hbell and dittii^l
above mentioned, and discbaire^^oi), and be thir 1
presents dischanges all new letters or ditt^iy to f
Be raised or taken up against the dd'^nderti for j
tbe cryme above s{»eelfit, in all tyme comind
wherupon they and tber procurators asked ano^
took instnimeuts*
His Mtijetties AdxHtcat produced bis ma-
jesty's gracious letter direct to tlie lords of hiftl
most honourable privie council, ancnt tbe pu*l
nishingf of the absents from, antj deserters of hitfl
Itynes host, and dcsyred the isaids lords might]
proceed con forme tberunto, and to his oiajeati*!^
other vivacious letter direct to ther lordship i
the surne date, and record it in the books ol Ad-
journ hI, upon tbe twentie sext day of November J
last : followes the tenor of bis majesliea i
letter direct to bis privie councdl :
ClLABLES R,
Right trustie and welbeloTod cousio and]
cM>uncellor, right trustie and wel beloved cousin
and counccHors, right trusty and welb«*lovciI ]
councellors, and trusty, and welbeloved C4}uii<
cellors, We greet you welL Having setn and I
considered your letter of the elivinth in&iant t9i
tbej duke of Laudctdale, our seoretarte, oofi*{
ceruing those who did not assist us in actp
preasiag the late rebellion, and those who de
serted our host at that tyme: we am fuUiiii
oonvioced that it would prove a great discou«^ |
ragement to our faith full subjects, who, in tb« j
discharge of ther duty, hare bein at a grcali
deall of expense, trouble and hazard in that cJt-J
pedition, if they should not see some suita
punishment inflicted upon those who (vviti
any reasonable excuse) did not come to our i
aistance at that tvme^ and upon those who ef\
coming to our uosi, deserted the snnic ;
therefore we *loe readlic approve the rrsolu
you have taken^ to fyne the most guihy, not^
above two years of ther valued rent, \>hitst
others who aro lease giiiUy are to be fyned al 1
least in tbe fourth part of a yoar*Byiklu«dfenl|j
which we take to be so mod^nl (ooniiderin^ i
Uow« d\%ti!i3AXV NSaa igwrtaa^ll ^^s«^ ^=ry(a«.'^&M^F^
\
4
.-?)!
CIIARLF.S IL PrBTMimgn strskui ihs Ffeakire Btritan, [40
Ivivo Ivm if ^,ft»\ •>!' iiiH .iilinit (f.io«ln#» Hai!*» .Tit
lif^v'nu-.l ilirni J ihnr hm yan <jiv tp:-#-. -.rAJIy It
may r.iiln-.' '\u: tlinuiflit i 'vnrnin*; Jh^n % pii-
iiiqlitn^nt !or •* iln^ •.*'*II know» Miat <iu\%% of-
|i«Mi!irt ii:iv.. ffirriifrti'^ h^t\ p'iniHlK:rl Sj for-
liiilinr 'ii'.-'iw^tifins ^rnl Imnmhnn^titR : an«1
<n -.vt: iiifl iif,-t i.»';kr1ly i3iff.vk*-\\. Oiv^n at 0«ii'
r .«ir» :it \'. :iit;i;iiL th-- l/Hh d:iy of .\o7«*.mh*-r,
ii);i|ir<:rif'< ro'iiirrif.d. L«<;r« Eft DALE.. !
^■'•mmuiiMifr* of Jjislirlarv, liAvinif fin.^i-
•IfTfil I In- IvIhII an • v^Tliri f»f sttsjv* aViVf: ;
^fftiiitn I'l-^itirr ntl.il hw Tri:i'j'«*firH (frimo-n
Irt*/ r^j. * .J iid^i.';^ 1,;;% \'',y ^!^ wiil siiirl ^;':.-k ,.-i'.
Sfi^rit liK- •i'liiisitrnr'nU to h»rr i^^iir.U•/l uj^jn ihi;
.••,4* iiU- fioiM, arwl fi'-<#:rt< ■•'«; of ii;A hvn*^ h^o.r.
'Irify J>r fl,#; rnr»iitli of Jam#^5l /ff^rirvaor.,
Tty.irjT of r .in't, r!pr^m^fl anil jiirf^H Ihfc aawJ
.riiii*-K Voij ./, 'if Kirktonn, to b*; in anfr uii-
Uwv nTj\ ui.tt'.rciHmt'wtnt'Tirif. thoii«and ftijfht .
liM'.'Irctli niil v:,*r.li': (i<itinfU Scotts, i
lViiirr.iv, of |'i*ififlii", iij tli.: ^oiimf^ of KTCQ ■
liiiiitlii'ilifi (I'Miri'li Scot^, ^it:\'iinf!f:r fliirham, j
»»f f *'ir:r'>, !'■ lii*- v»'iir»#: lit arK: tiioiiwinr) Hi^ht j
f :iii'|ii il, '.{ :!i;it lik, in tli'- soiimfi of fyve liiin-
«Iii«S |»'ini.i!q hs^iJltH, AU ?aii'if;r .Nairnfr, of
Sjirnf/irfl, in iho. mim of tito hiiri'!r»-t!i nvntift
f'..:r \t<,uut\A Un filiillin^ Sf:otU, f«f:orgi» 5lon-
«r'ifr, of fff.'i.c, in Uif; 4<r>n!ri«s of lliri-e hun-
«li»'Hi poiiriU S*oi|«:, ;infl JanifH Wryrnr*, of
*il<'.ii< .Jop;-, in ttir-^.»fimft of zn", hiinrinrtli
«' V. nil J;* w- iioiinfl Switu, and rirdaiiMrfl th«:rn
lo Iff .If. J Inn. I for p.ijrnn<rnt of tlio frirsai'lH
«./,iiin* 4 fii Iiii. rnAjf-AtU''!! r:a((}i l:f#'jKT f"'*r |j2<<
ii>ii««8 ii*#-, ;it fhf tfrm#! of l/i'i.'ir^ nixt, and
I'l hi 'I f»ii ir»Ti Jor |»rr4f;Tiriri^ Uj':r |if;rson<i,
Im I'll* I «f I'lr-l-; rfnttiu\HH%f,wrH of hi^ HuijfiSUtm
ill' ...«*...-, p.<- I;i I f-'riflay of .liry ii.-rt, iin«J':r
r- ^..tii,< 111- .(/.Ii%(|y n^ifiVfr ffir-hiioiifii, fifiil or-
fl II,' •• 'In Ml ill If*' f :ii \«;f| |/| |i;i«/»|i, rn«:i': tO TV.-
II. nil t li tr.i y Ktilixr r^li«: tlif («#kirt Uiri'l, nnd fiiirl
l|i#- »,'iii rli«-, wliiJ'Ii wHh |iroiiiirir-i'<l ^ir flooin.
'Ill' ...,.il i|.iv .Ii»!ni .Miuniy, of l'i\\ttf.hif^\ttr-
I":
III.
Th#t >v)nkA of A^ijimnni tor this
rnntain fc>*r.r,rri< rf th^ pnicewliiia^ airxiiHK
«e»*»rai other iwntft*^, whn w«rr broaaht 8»
trjii on th« l.ki» iadictaiMifs. Bat
th«^m an.l i^t^ c»m h#r« mpmiai there
not ipp«^r lA be tit!er#nce fmncienr to
the ia.serti«m of them either interaaag; or
struct* ve.
Fonr.tainh.id'f ucTiant^ aniler dates Feih 3S
an<l 2.:, I'^i-j '1 i>GS.oas, o7j of this pn>-
cr:H.ir», ia a.« UAloifB :
*< \r the Cnnrinal Court the ahaents (mm
the kiotr'i host in June txst, to the oamher of
.'^.j (yentlrnvn of Fife, are now paooeUeA.
N^rfa, thU d oot the thifi part of these »bo
'•vere a^l■ent in tiie shire of ¥\i^^ ami there m
aootiier indircment raiseti a^iinst th« rest.
*' Thf:y tint propooefi ^eoeral deteneei:
and aHeiL'^fj. that tbe\ having put oat their
nulUia, thfy w err not nlAar^ to attPOil in per-
ViH, t!.*r p^rLaiTient havia;; consei^tefl to the
rrni.tia i'l [.lace of that ienizwia. This was
ir;t ^:.a.xi<>"!. .^. Aitedgfed, the procamatioB
r:a!!in'/ t-^riv* out vvas oot published at the
liiindrMli !vfrif'rhr('«';i'.»..iiUHr.ol:»i4, iMvid flal- j HH'^i.f^k tp' .kfA-f.r^'A^es, as it expre«Iy bean
ftr.d ai*r nnis. Answered, Their privaie know-
le*!sy#^ .inr.f.:!'-'' ir.at defect.
'- Their p'^rticuiar defences (banded npott
flp«:ciaLtiHi, wf:r»f, 1. That some weie »tck.
liut the I^.rds toiind tesiificates from miai»-
ters, ph\ sician^, officers of the army, he. not
sufficient, without witnesses were adduced bjr
an excnlpatinn, for * testihus noo testimoniis
* est credendum,' See a pleasant Mnry m
Philip C.ominieiw* how Lewis llih of Fraoee
fined <;ome {j^entlemen for fl\ in^f from bis boat
acr^inst tli^ duke of Bur^indy, and tbej
ohl-refi to prove others were spared, who fled
0 miles fnrtljpr off thin they did. — ^Tbougb
pli \ sir-i;ui9 prMctiid a privile^ not to testify
iilKiii soul aud conscitnci-, j>t the justices de-
cliiiid, tlir-y w.iild reject all tesliticatcs tha|
iviinU'd it. '2. Ir ivas aiir-di^cd for some, that
th^y Heio past the kfre oi' oO. This was found
I lyiiif^ r.iljfdlii li;iv<r #:oifi|K:ipd Mirir I rtrh-vant, they provin;^ it instantly, proTidiiiff
' • *' ' ' - ' ■ '^ '^ - ''■' they had sent out their best horses, and their
liest men well appointe<l. 3. Some pretended
they were ofhcers of the iniiitia, and went out
With it, or that they had lamts in another sbirOy
and nnswcretl tliere. These were found rd»i
vant. 4. IJay of Unlkousie founded bisde^
fence on a nass to return fi-om tlie marquis of
Montrose, fiis su]ierior ofHccr: Answered, He
not lN;in£( in the kiii£;'s i^iiard, Montrose wa«
not his officer. Sdn. Commanders have no
|N)WfT to tr'tvK tlicni liciMiC4j to desert, else the
iialfof tlif! army iiii^lit be dismissed. Replied,
Inio, dtrscrtiiiGT is not libelled, but only not
coining. 2do, (irotius * de jure belli et pmdif
ifi very clear that other officers besides the ge*
niTal may i^ive * salviini cunductum de tb*
• drimdo,^aiid if the granter hare ezoeaded haH
fluty, then blame him. Daplied, deserting i«
« fin
p.-
I'"
Im ti
In
I'll 'Is lilt I diiy iiiid pl:i<U', in the hour of
' !•» |i;ii-i- In »rd iind m'iii diKiiri and M-nt-
, (If >ii'iiiii< III »if»inst liiiri for Lis rinnam-
.iit'l .il./dirif/ frui* bin iiiap-^tifH host and
II >»,ii>i| III, iiiid I'l liAVf (granted bond fur
il' til III !.:-. iihliiuc, ;ind ifiiio'l f'ai:tioti (or
' niiir^ III III • pi 1 v'lii lo l|uil #-ni'rl f:ontortiif
• ■ >.' i.h ill r liiuliill iiffic r>f flfiy hidilrn, and
ii"l I nil riiM'l iitir appfiiiind. Tlitr ionls
|iivi|. ■ i.ii,r,,|, jii.iir*- fU'ik and roininiKfi-
«.iMiiii Mil )iM-.l|i-i;n-|i-, tl»M-<-f«ir III- llir riioiitli of
.linm . Il» I t\ .''11, iiiiiriT 'if rofirl, ili'miicil iind
iii||iii|.ri't ilii^.iid .I'lliii \(iirrii\ of |*iil(ichi«%
l»i III oiil!;iiii- mid tii'/ilitr fiai' liiM iiiH|fHtieH
lii\«i -I, iiml In III- pull to ijif liorni' jind all his
iii'ii.ilili iriiriili. iiiid (M'lir III III* ifii lii>nl nnil iti-
lii<iii|rhl III mil i.f»Vf ii|i|rtii> lord's lifu*, for bis
liv< f'oniiiiipi Iind dpudN-du'iifr, which was
|iiiininiiiri-d liir duoin.
* So printed in the book.
fer Aiancefnm thi King's Hmt*
A. D. i6m.
c«
lUy and * per equipoUcns* Ubelfcd,
in •» l&r as tli« 4tll n«i v^ > M24, tbuuded
Upon, UMtimiiuls the oe the king
aigviost reMleri ; wlu* ' i _.trter» do not :
Mc act llO, p&rl. 142^J. Silo, Eslo inf«?rif>r
officers may (^tii turJoof»afid maBies * lem-
* norc padsV y^ ^^ ' in hello ^tin^oati/ and
Vf nen tbe army f^ *tnndin|f * in procinciu ;* tor
attUaniteir m iheir p>wer to dia-
mkaaU. fu lur Aytoitot Inchdaruic,
that be Has * m reueati luctn/ his only son
lta?tng l>i'i-n killeil some fifvr days before, upon
m miattke as if be bad been one of tbe arch*
iMsbopor^t. Andrew^a iimfd««nf ivhicb he
Wta not ; and Hm Jus No? el), say^, * per ooTent
^ dkfl non iuc^uirtiE^ur qui proakimi funus dux-
*jaiit.* 6. 8«ifne pfetcntkul that their wives
were then lyin^r dang^ei-ously sicW, or near the
lime of llierr delivery ; or that tbeir wives op-
fiosed ami c«jntradicte<i their ^ing". This in
mw m not relevout. 7. It was alledged thr
oiban^ that thptr houses, their horses and their
arms were plunderetl, and »o they neither
OOuid, niii were obliged in taw to go on foot ;
■lid they routd not at that time get other horses
to bi«y, they beintf all pirked tjp, — Becau«»e
there was a prei>umptioii ot* simulation in thi^
robbing, that it was caused to be done by
themselves, or at least by tht?ir wives to keep
tbem ai home ; iberefofe the declaration wiij«
offeri'l to them, uh a testifrcatton of their
loyalty if they to»»k it : but sundry of them de-
chned it, and otTercd to purire tbemsetvps upoti
imtbf thai there was no collusion. Yeu, some
apprehended that iheir def«?r>ce of ^ickne^s at
anrh a lime «« thin imt^til he niinnliite. 8.
fskniic denied thnt they wi-re bpriton*, and so
wer*- t\nt ohlii^rd to nttend with the gentry.
T^^ • craved they miglit then rfnount'c
Hi J -^sje to the kin*;, * ad reinutien-
* tintu, \i>svM'red, they Here not ohh^eil.
Replieil, Where i.ne is 'pijr»ned ibr taxation,
denies he is ain heritor, then the lords of
ion johli^ him to renoiiore. *), !S<jme
riifo-i tk,... *<^*'n* only upparetit heirn, sinil
l>t n* in ]M)ssession of nothing,
huL _ , iit«^. Answered, the right of
apparency lorleiii* hy the 6'>th act of purl.
154 (^ and m tht' ktoi^ has ri|;ht to wh»t iliey
miKbt «*ot'eh!t*d u*. to. Alledifrd for some,
they were only wiidsett^irs, or only pos'»t*satHl
* jure mariti,* or by the conrtcsie ol Scotland,
Vhere thev had married an hcretrix ; and fio
were not Ueritarii. Answered, Since the law
was so courteous us to ^i\& them thi^ Itti^rent-
courtPMe* tbfV ouf^tit to ite a* discreet and
thankfol an to det«Mid the law^ atid their own
j.,j,.. i ... ...I .. r ■' ^.f,,. ,yas 'jure feudali et
* (I dliii pro tempore et ud
* u,i.,4..- : ^.^ .,.i. liable to all i»«frvices. —
Qnirr. It a blench vjiBf^ul n'ho pays his ^ red>
^denilopro omni alio onere,* may plead ej£-
cmiHion from boats and raids ; certainly he
cannot. 11. It wan alled^ed for some, that
tliey had no itdieritance but some crofts and
burrow roods, within 100/. Scou of yearly rent,
lod so w«r« not bound to go out iii|)ertoa ultb
the heriioiir» their rent not being M% to sit^lsiit
ibem as hors«ro«n.-^Tboii^h they should go
and pmiteel their own propettf , yet this ex-'
ceptton seencia very rele^at* 1 hea rd t h e lorita
assfiilzied them nhoss bmfage was withiii^
300 merks yearly, as not hein^ able to keep i
horse on tliat rent : but what if they have m\
good fortune aliunde in money P Some malc^ 1
100/. Scots of valued rent the rtile ; and if they
have under that, they are not obliged to atlenil '
hosts and raids. The old crimtnal iiiljourrial ^
books mtrntion sundry excuses fur sitch »s ab< ^
sented theraselres from hosts and raids. Anent
the French ban and Arritfr-ban, see Craigf p.
213. 12. 8ome alled^ed they were merehanta
and burgevses within a bun^h royal, and
watched there. Answered, Since they i»«r«<.
Iiind%»itrd heritors, tht*v ought cither ' rtfutai^
*■ feuduni,* or else serve the kiug for theif
land. 13, It was contended i\it ai>me, ibat it
wau * res hactenus judicata/ for they had
been summoned to the circuit at Couper antl^
t be re b ai I ^H absol * i tors, A mw e refl , 11i e d let
there was only deserteil, and that did not huider
raising of new letters. Replit^i, It was more I
than .1 ' , for it proc^eeded upon trial o^l
the It their excuse ; and beinj^ found ,
just atii ^ir'<\< u, it was admitteil, and (lie^y as- ,
soilzied, 14. Allt<lj^etl for sume that were
ahscrtt from the bar, that they were lyinjBT sick,
in thflt they were within 16 years of ag^e j for
the law condeftoends npou nfi heritors bctvi rca
J i> and 60 I tait these were tt*pelle<l as not in*
<.Uinf!v v«n-irit'<t. riuil they were fiiiod* 15,'
I , <Scc. alleilged, that Ihey
\ t loyaltv,but wei^yuaMe
totra^d oit hor»eL>iLck for ttie gout, gravel,
corpnleucy, '^cc. but that they hftd sent one
more »umcitnt than themselves. Answereif^
Their serving • |K*r sulMiUtutuur did not ex-
oner ; which nee debated hy CrHig', dia^, 1^
lib. 3. 10* F<ir Lindsay of Uonbill it was^al-
Mged, That, hy a c<mimand of ]»riry council,
he was ordered to atteud them and tlu ir diets, ,
at the same ver^' time that the heritoi^ w<<re
failed out. Answered, * Posteriora deroytuit
' prioribuii/ and the proclamation calling tbe
heritors out wos after that act of privy council
anent him ; ami he shtiuld have olieyeil the
last. Kenlietl, the proclamation u as only ge-
neral, their order for hi* ap^»e»rdnce, under the
p^in of lOtOOO merlcM, (Hhich was uncertaia
when 4h**y nnifht call for him,) was special^
nnd * in toto juie ^eneri per speciem dero- %
* gatur.* — Besnh*«the foresaid nraark-*, having
gi*t a summarv ahhreviule of the derence*^ and
debalei with ttie atterlocutors tollou ini*' there*
u]>on, as they are recorded in tl»e Criiuma) A«l-
journul bookH, 1 thoinf hi tit also to insert them
* ex sujierabundanti;r here, Tho Ist general
defence i«, that the uh set, l*t pari, kingf
James 1, founded od, anf nt the ret using to en-
force the king agiilist notour rebels^ must be
co(i<^rucd and undento^^ only ot rebela^ either
convict or declared tngitive : and the 2Mh act,
9nd park J. 9, relates only to weai^on-shaw-
tng, Sdo, Th«t the procliiitatiOQ wu not iiiti*
43]
S2 CHARLES IL Proeudingi Bgahui tkg BfeMre Ueriion. [44
nate to the heritons and lieges, at the market-
cniss of the head burif b of the shire of Fife.
3tio, That the foresaid okl acts were made
when the king had neither standinci: forces nor
militia ; but now having both, the subjects
ought to be exonered, and the said acts not be
fouuiled upon. 4to, The king has indemnified
several crimes, except those who did- not assist
bis host* but they who sent out their servants
and horses did assist, and so are pardoned, and
cannot be pursued. 5to, They founded on a
letter, alledged written by the chancellor, in
name of the Secret Council, allowing such
heritors as were valetudinary, wanted norses,
or had any other reasonable excuse, to stay at
home and guard the country. — ^The first 4 ge-
neral defences were all repelled.
«' Then they came to the special defences ;
and it was alled^ed for
« Boussie,--^That he attended the host with
servants and horses, well armed ; but being
valetudinary, he procured a pass and licence to
return home, and Udi his horses and his servants
in his miyesty's service.
*« Hamilton of Kilbraclimont,— That his
liorses were robbed from him by the rebels, and
his servants were sick ; yet he furnished him-
self with horses, and followed the Fife heritors
to have served the king, but they were return-
ing after the victory ; and he offered to take
the declaration.
<< Law of Brunton,— That he was sick and
bed-fast durin|^ ail that time.
** Nairn ot Littleftiertown's defence was
sickness, and that all his estate was liferented
by his mother.
<« Lundy of Stratharlie's,— That his horses
were robmsd by the rebels, and that he was
content to take the declaration.
** Sir James Sinclair, Kinninmond, and Bal
birny's defences were sickuess all the time of
the liost.
*^ Beaton of Bandon, — his laily's dangerous
sickuess, his sending his servants and horses
to the army, and his taking the declaration.
<* Melvifi of Cassin^ay's, — a licence from
the captain to stay at home, his lady being sick,
and he wanting horses.
*« Durham of Largo,— his horses were rob-
bed by the rebels, and be offered to rescue them
by force, or to redeem tliem with money, but
could not have them. He offered to give his
oath that this was not collusion ; but refused
to take the declaration.
** Cowan of Corstone,-^his horses were
taken away ; he is no heritor, but only pos-
sessor and factor of an estate for his own pay-
ment, and the payment of other creditors :
But he refused the declaration.
<( Balcaiiquhall, of that ilk,»Thathis horses
were robbed ; but shunned to take the dedara-
tion for fear of disquiet from bis wife.
« Nairn of Sandfurd, — ^That he sent his ser-
vants and horses ; and being a captain of foot,
he endeavoured to cooveen nis oompany, but
none coming save ten, his colood sdjomed them
to aaoiber compwy
cooveen lus company, but
1, his colood adjomed them
$ and so his boiwo bring
^one before, he oould not get himself timeoudj
tomished with others : He rehised the ckcfai-
ration.
«' Moncrieff of Readie,— That his ladv being
sick, he sent an expert soldier with his novsas,
who were accejited of, and he had offered to ffo
himself if they had not been received ; hoi ho
refused the d^laration.
** Wcmyss of Glcnniston's defence is tfasr
same with Sandfurd *s.
*' Young of Kirkton, — his lady's dangerot»
sickness, and bitter curses if he should leave
her ; and the ap|iearance of abortioB upon his
offering to go from her: But he refused the
dedaratian.
<* Murray of Pitlochie, — ^That he bruiks his
little estate by the courtesy of Scotland, and
the heir is on life, &c.
" Muirhead of Linbouse, — That he wao
within 14, and so pupil, aud he coukl not gjo^
not being fencible : vet some thought in stncft
law his tutors should have sent out a man for
the land, even as onethat is past 60 should do."
Then he gives abstracts of interlocutors.
*^ Largo,* Corsteu and Bakanquhall wer*
unlawed in one year's valued rent Sandftud^
Glenniston, and Ueadie, were amerciate in half
a year's valued rent. — ^The diet was deserted
as ta Holbom of Menstrie, and Gideon Murray
of Pitkierie, and others, it appearing that ther
were past the age of 60. So thm is shnsit
room left for that question, whether annus 60
inchoaiui (as heing^'in materia favorabili) will
excuse, or if they must be 60 compleat. The
declaration was offered to none whose defence
was sickness, or who had any other defenoo
that put them beyond a possibility of aUendiog.
** I heard where there was a liferent and a
fiar, that the (iar was found liable to attend the
king's hos^ and be at the expence of sendioflr
men ; yet it would seem mucn more equitable
that the Uferenter who posseses should be liable
for tliir onera fundi realia^ than the fiar {
* Onus temporariae indictionis ad fmctuarian
Vpertinet. 1. 28 D. de usu et usufir. lesatot^
For it is a real burden, and Uferenter* shouU
bear it. See Nov. 1673, f. 228. For Physician^
vide < Mattheeus de afflictis dccis. Neapolitan*
< 41 ; tot. tit. Cod. de professor. etmedicM.'
The lords were inclined to think any eminent
physicians wore exempted as to personal at-
tendance, but these who were sahiriat to attend
the army; only they should have sent"
He has also another entry respectingjprose-
cution of persons for absence from the Kinff'd
Host: •
<< March 6, 1680. At the Criminal Conrti
some heritors of the three Lothians were pan*
neled for absence from the kinff's host. Jamoe
Ellies of Soothside, Durham of Duntarvie» and
many others were fined, some in 1000 merksi
some in 300 merits, some in more, some in'
less, according to their valued rent; ud the
loids proceeded with modeaietion enooglu
«<Iallr.WiiliMnCaiM|y't<
tS] PrccttdingBagaimtikiCardMtt^fEarltit&m. A/D. iSfid.
ri8
ofCowburu, tl - : ue of his bdog a mem-
ber of die co istu;e was pro|»uDe(l» to
caUKin liiin Irum personal uttiniaiitice at ihe
kiog^t host, am) wan repelled, as I hear ; btil
tt wm neiUiiiir hilly debate, nor the acts in tlieir
immn shown ; and therefore tlie ctiTnltiiU
lords Gontioued the diet against Mr. Thomas
LearmoQt, Mr, James Hunter, and the other
ftdvocatea who were convaened far thdr ah*
•cnc«f) and had gt)t iDdictments and citaboni
for that dTecl, and they forbore to insist agpainst
tbeiri. It may be alledged for advocates, that
thev are not obliged to attend boats and raids,
anci a man in arms for them ; and ought not
lo be pursued for ahispnce therefrom: Imo,
ll«ettiae the iU^man law exeems and pririlegcs
them ^ah ^minibus tunctionibns proviocialihui,'
II. dp ac 6. C. « de advocat.* diT. jud. el tot. tit.
it re 1 J Lid MIC I
<fe«ar« et tMdkk % imino tk ffioo*
: oth(»tVed there ftAfvna. %^ llirf ^
by an GxproHittotof Bed«runl muM
by the duke of Chattidh«mit governor m 13^4
3tio. In June 1a«t the Lords tat alt the ttous of j
the raid and campaign, and ao odi^neales etmM, j
not warrantably desert their ohenta vi^un qqo* j
tmry to their oatli de Jhielit nod of atlendnifp S
the Lords* 4to. By aote of aecrst cofum*^
then made, the college of justice were fuKd *
mto a cotnpany, lo help to i^ard the town of^
Ediuburgh, and they chused their captain,
lieolenaot, and other officers, and got arms
from the castle, and marched, and «lrew up,
and usefl ditcipUne* Nota, This makea not
agKinst the colle^ne of justice, for Mr. William
Cwsaly IS deprived ftom being a writer to lh%
sigTkei.***
826- Proceedings against the Gordoxs, of Earlestoun,* and others^
for Treason: 3^ Cha^rles IL A. n* 16S0. [Now first printed |
from the Records of Justiciary in Scotland.]
CoftiA Jv9ncuAtMt 8. D* N. Re^s tenta in
prelorio burgi de Edinburgfi decimo oc-
tavo die meosis Fcbruarii, 1680, per ho-
I liorobilcs viroidorainosGeorgiiim M*kcn-
^ zie de Tarbel Josticiarium Gencralero,
Thomam WaUacc de Cratgi*, Justiciarie
Clcriciini^ Uobcriorn Nairn de Strathiird,
I>av'iilem Balfour de Forret, Darldem
Falconer de Newtoun et Rogernm Ilo^e
de Hurcarss, coinmiaBionarioa Juaticiariie
dictii H. D, N. Regis.
Curia legitlime offinnata*
The isaW day anent our soveraigne lord*?
criminal letters raised, used and c^ecut at the
hiatance of sir George M'kcnzie, of Rosehaurh,
^or soveraigne lord's adrocat for his hyiKS m-
• 8et* in this Collection, the Introduction to
the Trials for the Ryehou^e Plot, inserted in
tol, 9, paiticularl ' t^t 8e<j. 8ee, aluo,
as to the torture ' i im and some other
partirubrs, vol. (j, pp. i^'ii, ct tetj» and of the
10th volmne, pp. 751* et acq*
It appears fi-om Wodrow, iTtat Oordou, of
^udr^itouM, haTing^l>een, together with several
other per^iona, cited to answer for being pre-
sent at Houte and Field CoiiTenticlcs siuee the
year 1674, and for reset and conrerse with in-
tercommunefl ponKOti^i, ami not compearing,
Ufaa with the rest, on February 18th, 107 9, or-
id«fed by the Council to ht detiomieed, and put
iQtliebom.
Upoti I Fjtb, 1679, the Oocnci! ap-
fc'i riofa rommittee of Ptibuf?
lo Uw tbllowing effect : *^ That they
WtH a letter of thankn to C. Came and
"fVuiHtm Camiichael, sheriff- depulcH of Fife,
for their dili^ce in ^csrcliixig after the mm^
4eTtri of tb« primate ^ and Ind impowered
proTc '
terest, and also at the instance of lievtenaiil 1
collonell Edmond Mayne against master WiU
liam Ferguson, of Kellock, Mr. >VilIiaui aul i
Alexauder Qordoos, of Earlatomi, elder aud
younger, and James GorJon, youut^er ofj
Craishley ; and alao aneut our said soverai^nt j
lord^a other crimtnall letters, raided at the in* '
stance of his majestie^s said adrocat far hip <
hytiesentereBt, and Uertenant colonellJames
liouglaes, his infortner agaivest "- ■ Gordon,
of CulTenan, — Dunbar, of Mnchrimore,
and I M*Ghie, of Lai^e, mak and men- j
tion, That wher notwithstanding be the comrooa ]
I awe, la we of nations, lawes and acts of per- i
Itament, and constant practice of this kingdume»
the ryaein
Dumoer of
fing of his majesties subjects, or anj
of them, the joyning and a5semblein|f \
them to secure and put under inTCntftrytbt!
goods of John Balfour of Kink>cb« Maekstouo .
of Rathillet, the three Balfonrs, in Gilstoun^
persomi most suspect of the murder, until thejr
them9€»lves be brought to a trial : thai they had
called before them ten persons apprehended in
the south by the laird of Meldrum, two of j
which^i^ohort Ncilson and NIcol Story, caii J
make great discoreries of Welsh his haunti
mnd reset, Neilson baring confessed that h«
rode wiih him and Btory ; that he collected
contributiotis at their raeetingi*, rolls of which
were found on him. They are neTuittctl lo tht '
adrocate, with other four prisoners sent in *
from Air by caphiin Murray ; and are to coti«
linue in prtson till they reoeire a hl»ci tor b©» <
rng at conventicles. That the cautioners of 1
Mr* Alexander Gordoo having forfeited thdrf
bond, by not prodncing him, be dmrged M .
ftre thousand merks ; that Mr« Andrew Ken* 1
tiedy, of Clowbuni, uptm reftnlng to depoo^ j
be held •• confess, aud fined hi a iboostli]
4
bi
32 CHARLES II. ProeeedingiagaimitheChrdaMofEarhi&un: [48
Ucal, are most •detestable, horrid, hynotu, and
abominable crimes of rebellion, treaaon, and
lese majastie, and are punishable with for&ul*
ture of iyfT, lands, beritas^, and escheat of
moveables ; and be the third • act of the first
parliament of king James the Ist, it is statut
and ordained, that no man openlie nor nottoorly
ceptM'Ghie, ofLarflf, who is coutinaed until
the second Monday of June."
Under date Aug. 21, 1G83, Wodrow writes,
*' Earlstoun's process before the jnsticiaiy
is very short, upon the same day. They pro*
oeed upon the former sentence, and only nam*
the day for execution. ' The Lords find the
* pannel, Alexander Gordon of £arlestoan| was
* found guilty of treason by an assize, Fe-
< bruary 19, 1680, and ailjudged to be exe*
* culedand demeaned as a traitor, when taken ;
* being now apprehended, he is sentenced to be
* beheaded at the cross of Edinburgh, Sep-
< tember 28, next.' This is all I find about this
gentleman in the criminal records:
" In the Council llegisters there is much
about him, but I shall not enter into any larger
detail of his affair. He was taken ffoing to
Holland the last of May, or first of June this
year, which made a mitf hty noise, and people
thought a great discovery would have been
made; every body was upon the scent and
chase as to the plot against the kiug*s life, and
the council and bishops hoped for wonders out
of Earlstoun's papers, but there was nothing of
that kind to be fuuqd in them. The real ac«
count of that matter in short stands thus.
*^ Earlstoun had been abroad very nrack
since Bothwcl ; he came home this springs,
andjoyncd himself to the society people, where
he was safest from falling into the manager*
hands. In April or May, at one of tneir
general meetings at £dinhui^h, I fmd, by the
origrjnal records of the societies, that he was
pitched upon by the general meeting to. go
affain to Holland, and joy ned in a commisston
With Robert Hamilton brother to the laird of
Preston, his brother in law, for representimf
the true condition of these people and their
principles to the reformed churches abroad, f
nave before me the copies of their commissioa
and instructions, and several lotters and repre- •
seutations they sent with him, too long to be
insert here, but they have no relation at all t»
the Jilnfflish plot.
** I nnd by an original letter in my hands
from Earlstoun to the societies, dated New-
gate, June 9, this year, that when he had got
safe to Newcaiitle with Edward Atkin his 8er«
vant, formerly spoke of, and was aboard a ship
for Holland, Kome waiters came and challenged
them being strangers. Eurlstoun fearing the
seizure of the papers he had with him, dropt
them into the sea, where they were noticed,
and taken up, and both of them seized and.
sent up to Newgale, whence they with the
papers were sentoowu to Scotland to lie tried.
*' June 2. The council write a letter to the
47]
Cogither in armea without and contrary to his
tnaiesties command, warrand and authoritie,
and the abating, assisting recepting«nd keeping
correspondence with such rebel Is, and supplie-
ingof them with levies of men, horse, money,
orarmes, and furnishing of them with meat,
drink, powder, ball, and other munition bel-
merks ; that Mr. Robert Maxwell, now cour
fined at Paisly, because of his great age and
infirmity, have the diet continued against him,
he finding caution to appear when called, un-
der the pain of a thousand merks ; that, upon
the testimony of the archbishop of Glas-
^w, Mr. John Law be dismissed, upon cau-
tion, to appear when called, upon bond of a
thousand merks; that Bennet, of Chesters,
continue in prison till he receive an additional
libel ; and Scot, of Pitlochie, and his cautioners
be cited to the next council day."
The Council also continue Eariestonn's case
till next diet.
The Gordons, of Earlestoun, elder and
younger, are mentioned by name in the Pro-
clamation published by the Scots Council, on
June 2C, 1679 (inserted, N"" XXX, in the Ap-
pendix to 2 Wodrow) by which the king dis-
charged and prohibited all his ' subjects, men
or women, that none of them offer or presume
to harbour, reset, supply, correspond with,
hide or conceal, the persons' therein numerated,
or any others who concurred or joined in the
late rebellion, or who, upon the account thereof,
had appeared in arms in any part of the king •
dom ol^Scotland.
Wodrow, in relating the transactions at
Bothwel-brid^ [June 92, 1679] says, *«Whe-
ther it was this dtky or the following, I know
not, but at this time that excellent person,
William Gordon, of Earlestoun, who was com-
ing up to the western forces, was killed by the
English dragoons." It seems to be clear that
the person spoken of in the above passage, is
the Alexander Gordon, elder, of the Case be-
fore us ; for under date February 18th, 1680,
Wodrow writes, " Mr. William Fergusson, of
Kaitloch, Alex. Gordons, elder and younger,
of Earlstoun, James Gordon, yoiuiger, of
Craichlaw, William Gordon, of'^ Culvennan,
Patrick Dunbar, of Machrimour, and
M'Ghie, of Larg, are called."
** It hath been remarked before, that Earies-
toun elder was killed about the time of the de-
feat. This ^ood man is prosecuted afWr his
death, of which we shall meet with more in-
stances." [See, too, in this Collection, vol. 2,
D. 707, the Case of Robert Logan, and the
Note at the end of that Case, p. 722. See,
alM, Laing's History of Scotland, edition of
1804, vol. 3, p. 54, where it is said, «< Ac-
cording to a le^al maxim that no person can
be condemned m absence his (Logan*s) bones
were dog up, and in parliament produced and
srrai^ed at tbe bar "] « The prepared witnesses
depone as to their accession to the rebellion,
•Ad they all ire ferfeitad in common form, ex-
lituaent, ftistttatut^lUatciomem wilfuUie rece|it,
^nuyor of Kewcasillc u|>oq thts ufiair. * Sir, We
/ received jour cf^K^rtiiif, wlicrein yuu ae<jiiniQt
* UA ivitli iwo perKuns aptiri'lteiiikJ ami com*
tnitU'ii to hig iiinjffttv » gaol iik your toivn,
with whom arc lound sc:vcTttl M;ditioU9 papers
anii liHt«r5, utidlbat these' (uMsotiH nere ^ouig
bej^oml !tL'u» trndtT ilie T Alexainler
Pi'iiiglo ami Edwaril 1 , but were
hy voiir T - \<'ntc'il, uuii muir papers,
U'htch tl : lod to destroy, preserved.
P Colonel S-, «,,..- ;iUo liaili sent us copies oi
f some of tlie*e seilltiouij paptrni, the ongitmls
* whereof yoti have done u ell to send to bis
* luniesty. We are very senstible of your care
> arid zeal tn his tiirtjesiy*s service, and return
~ yi^u thiiuks for nc(]uaiutin^ us therewith, and
desire you may be [^leased in detain them in
Aeparate prisoos, ainl continue your care in
searching for susj^et petsonB, |;mUy of pur-
suing ju'ditious courses in this kingdouQ ; for
we liave reason 1o (lelyve that several reliel-
preachirs, aud oUier fugitives from Justice,
, do iurk concealed in and alioui your towa.
* We shall not he wanting to iiiforru his tnajesly
* of yourzeaJ iu his service. Yours, &Cp
* Aberdeen.*
^* At the same timethey write another letter
coloDel Strulhei-?, signifying. They received
13 of the tirst instant with the copies of some
pf the pup4H^, thank him for it, and desire Inm
to continue hLs diti^ence in discovering^ seili-
lous aod suspect |»et'Soiis in tin? North of
"iogland.
The council were very e^tact in the exa-
jnatioii of all the papers, when sent down lo
tcin. They drew up their (|uerics lyid written
answers from Earlstoun ; he wus mo^t Ingcs
Ituous in giving accounts of ull he knew with
fcspectto the paperSi as I find by a copy of his
«aswer!i to the council r|uencs, and there was
* ideed nothing in tJiem save fornmi^Hions and
itruciioDs to htm and Mr. Jlumi1lon« with
etters to some Dutch ministcrii and >krot^JMen
Holland^ and papers on civil busiiiesM. And
ter all their endeavours to find Bomu%^ hat re-
live to the Plot, they could fix upon nothing",
T nothiii|2r was to he fouml of that nature.
** Nevertheless the mana^ei-*, ufWr the jus*
ary had renewed their (ornier !$cntence of
lieath n\Mtn him, resolve to put him to the tor-
re. And liein^ sti aitene<l in point of law to
c of deaths the
• Liht honoumbfe,
I it Lirlstnuu having
I ; ^ I ri , md examined
Imri! vxliiMM, It Sterns,
can he had from all the iuter-
ro|f;» i^y could propoHc to him, than
what hath bemt alfc^y put in writ, anil seut
to his royal liighiMms •tid your Ivrdttiipi and
VOL. XI.
orture a ]»
[.council V.
^ by liio council and j
C* tiieir iiijiitlti:i, niul
' not'
itaiiie or doe favour lo optn i
ht*\h agairM<t Ut^ ni jjesiir ;md the commi*vi lawc,
under the paint: of forfAltuir ; and be the lour*
tdnt act of the sieijtl parUameuL of king Jamei !
the council having had under their c^mKiileni-
tion what is further to he done anient him, h« ]
Icing a person under the sentence of deaiJi
for hijiifh treason, thought fit, in regard ther<i
are only in town three of the justices, th«
rest not being' to l»e here till Noirember, lo
desire your lord*(hi p to take a<l v ice of his ma-
jesty *s advocate, (now at l^ondon) if by th«
luvvs of this kingdom, and in thq circum-
stances he is now in, bchtg under ihe sentence
of death, he maybe put to the ijuestion by
toiiure, upon such pertinent questions as your
lordship and he shall think fit to <liaw up,
And if he find that he may, hy the lawt of
tliis kingdom, be now put to the torture, that
Ibe advocate, as soon as may be, come dowo
himself and answer any thing that shall
hapj>en to be objected agaiust ii by the said
Earlstoun, or send acommifision to some fit
person to do it for him io absence, against this •
next council day, September 11, with such
interrogatories as shall be thought fit to hv
proposed, that tivc council mtiy do justice in
that matUT, The justices having met this
day have given us an account, that they hava
ap|ioime<l the 28th day of 8epleml>er for
putting the sentence of death in e^ecutioii
against Earlstoun. I am, 6tc.
* Aberdeen, Cancel* I. P. 0.'
" Ad answer came not t« this letter until
September 20, whtn a letter froui IMiddleton,
secretary, dated Heptember li, to the chun-
ceHor, is read^ and follovvs: * My lord, In an-
swer to yours of the 2 l»t of August, Iain
now by the kind's command to aci^uaint your
lordship, that his majesty in a full Quorum
of his privy comicd of Scotland now her^
proposed to his advocate, wliether Alexauder
Gordon late of Earlstoun, notwithstanding of
his being condemned to die, might be put ta
the que^ition by torture. II is answer was,
thai though no man can be put to turtu
upon intemigatories only rcliiting to thecal]
for which he was condemned, > ct he tnay 1
tortured with i^latiuu to plots, conspiracies,
and combinations that have happened after
the time when the crimes were comuutte^l
for which he was condemnetl. Aiitt sinea
it is undeniable that the said Alexander Got* ,
don did accept a treasonable coiiimii<^ion from
reb«U, and it doth api^earhy a letter direct to
him from J. N. d>ite<t ai London, i^Iarch 'JO,
last, that he was privy to the late horrid con- ^
spiracy again&t his majesty's persou uud go-
vern mt tit, and yetrt^fiist'ihto give an acooiml
cither of those from whom h*? received tti#
said commission, or such a:, he knows were
accessory to the said cmispiracy, aii«l boib
these points beinc of *>> greai c«iii5e(|ueuc^
fur the future set ^ majesty's |»er90ii
* atid g«v«ruiii«ai« /i;for* moliied hy
J
5IJ
3a CHARLES II. Proceedings against the Gordons of Earleitmn; [Mf
the 2tl it m slatut, that non rebc^il againest the
kingr'n jiersoo or autboritie, or make warr
fl^ramni the king's [tfidfjeu, and nlioso does in
ihecouirAir U be |>itnishefl cHer tlte quuhtie
and qaantie of siu-h n?belliou ; aod be the
ti»efity fyft act of his first |)arltumt*nt, h is
italiit» tfiat if any maa commit or doe trea-
iOfl a^aiiifst the king^^ person, or rysc in fear
of we.^r flg^iinest hirn, or recetils atiy
tli:il hn$ comiiiitUH) tJ'eiunn, or i«uf»|>lies iheiri
In helji, redd or council), shall lie iiuiiished as
troitorH ; and be the H4 act 12 pQTlitinieiil king
Jame^i (5, it is stJitur, thai wherever any de-
ct&ired traitois repairs m any j^artoflhi^ kinsjf-
itniiienou of Ut^ ruujestie^s leidf^es shall pre-
sume to rerept, Rupphe or intercomon with
Ihcm nrpvetliein my relieti' or comfor! ; and
that imnieditttcty upon knowleilore of iher re-
parring in the bounds, alt hi« majesties obetJient
*ulye<.'t» doe ther exact diligence in searching^
' and appreliending- the saids traitors and rebelts^
and that with all speed they certifie hin
Riajestie, or some of his secret councill, or sorae
permits of anthoriiie and creiiit within the
«hyre, that surh reMls are wiihin the same,
tinder the pnine tliat tlie $;aids rebelU an<l
traitors on^ht to suMuine if they wer a|tpre-
hendit and convict be josiice : lykeas by the
fyii act of the Hrsl sessi^m of bis majesties first
' his majesty, that the said Alexander Gordon
* shall be put u> the (ortui-e, and tnterro^te on
* what may jiertinentlv relate to these two
* he^ds, to Hit, as to those who have bad ac-
* cession to tbe tjmniing the said commission,
' or the said conspiracy, of which it fa his ma-
* jesity's pb'asure you acquaint tiie lords of his
* privy council. 1 am, <ic.
* Mu>DLCTON.*
" In pursuance of the above letter, thecotin-
eil thai S4)fi»e day noniinate the marquis of
Douf^bus, earlts of ^'w^ddale^ Wintouo, and
Ijiulitht^nw, the loH Livin'^touc, E^tneral Dal-
ziel, 0»e pre«tideui, lord Collingrtonn and ('as-
tk'hill, or an^ five of them, aj* a committee to
meet Tuesday next, at ten of the clock fore-
fiiH>n in the ordinary place, and consider the
lot* rrO|;iilonL"R to be' put to the said Alexander
Gordon, and nee him questinned in th« torture
upon them, and others arii^in;^ fiom theiUi and
"' , with power to them to do all thmf^
to that puqro^e, as they shall see
)tid ontaiu all the membf^ri of the
iirt to be present, and Mr Cieorj^e
<»,i, L ;u;in» ..r,K... • -it^ from tbe
advoc^iiff* to 1 rrtintmtre*
]AUn'^ to thL* X . ., ., „,.,* 4ij bo present
wi h the conmiittte,
♦* Aor^.n^ti'^/t'/, Sr-:>tni]lipr 2j, the foresaid
#oiki lu^ witli the in-
still I : 'ly, but did not
apply ti^ \iv ytuirftiiU)* Lr would be a« incfe'
Kmou-« fit*f! nK't e TmII thnrt he could be in tor-
inrf lid hij( answers
•rr Sprat, lale bisliop
«f '^ Li^^'^^c^i*^ J iii« account of the
parliament, it is declared^ thai it shall be hytt
treason to the subjects o( this kingdome, or any
nuralier of them, more or lesse, u|>on any
t^round or pretext wliatsomever, to ryse or
continue in arrays, to make p€^ce or ware, or
to make any treaties or leagues with forraigrne
princes or estates, or amtJnqpHt themKelvtti,
without his majestie's specjall authoritfe and
approbatioa <ir«t iutcrponed thereto; and all
his majestie^s sul)jects are discbarofed UfM>ii
any pretext whatsomcTcr to attempt any €>t*
these thiufj^E^, under the paine of treason; and
be the eleventh act of the first stsMoooflLif
maje^tie's second parliament, it i» statut and
ordained, that in tyme coming in all ca^^ea of
treasonable rysein^^: in armes, in oppin and loa-
nifest rebellion, ag^ainst his majestie and hia
authoritte, his majesties ad^ ocat may and ought
to insist ag'ainst and prosecute such persons, as
be shall be ordered by his majestie or his privie
councill to persewe, and if tliey be cited and
doe not ap|M'ir, his majetftie's justices, notwiib*
atandiit^'- of ther absence, may and ought to
proceed to consider and give ther iuterloquitor
upon the lybell, and if it be found relevant to
adniiti the same to the know led ei-c of ane in-
quest, and upon the verdict of the inquest find-
ing tlie samen proTen, the doom and sentance
of forfaullure oug-ht to proceed and be ^reo,
Rye-bouse Plot, though with some mistakes;
and so I shall not say any thing' of them here,
but that neither the IHot agninst tbe king*9
hfe^ nor the design of risin|^ could be 6xed om
this gentleman, or the people who sent bia»,
who really knew nothing of the matter.
** All I find further in tlie He^sters upon
this gentleman's case is, November 23. ' VpOti
' a new letter from the king, the council order
' Earhtoun yet to be put to tlie torture : biit
* when he is brou£|^ht in, he appears to he in
* diffraction, and phj^sicians were calleil to
* consider his case. November 27, thii phy-
* sicians report he is affected with that distem-
' per called uUenaiio mentia^ and advi5;e be
* may be sent to the castle, that by the change
* of the air his case may be liettcr know n . f>^
* cember 7, Earlstoun jK^titions for pious di-
* rines to be sent to him, thai he may have
* their benefit before his death, and as a dying'
* man declares his innocence of any p1otap^Ii0C'
* his majefty, prays for the kin^, and adherea
* til the answers he gpiive lo tbeinterregfatories,
* He is reprieve^l till the laiit Friday of Ja-
* uuary. January 17. Karktoun's reprieve is
*■ continued till tite last Friday of April, and
* his peiiiion for pardon transmiUt d to the ae-
* cretary. April 11, he is r^--^ • ^"i «'r^iri till
* Dcceml>cr. And in M\\\ ihc
* lliis.s for liis hr-ukli. In ^1 ^ : 'uing^
* ! r/ 1 bus he con-
wiih more Uberty,
vuh bis excellent lai^^
tty tbe rcrolution. And
imps and manBiiners,
king's person upon
i
I
I
and MMi»*jti
until he w
aUihf^
to lix til
Bcolgi^i^Uyieuuuy, catue to uotbiii^*^*
SS]
/or
A. D. \6m.
[5*
^od pi'onuticred iti the same Tnanoer as tf the |)eJr-
stHMH accused bail coiupeired aud wer pr^seat ;
uevertheiesMj the saicl^ Mr, VViltiam Fei'^u-
son, of Keilock, Mr. U tlUam aad Aiexander
Gordons » of Kartestr^uu, elder, and y 01111^1%
JaDii'U Ciordou youtig^er, of Craisliley, -*
Gordcii !il'Cul¥fnaD, — DanbarjOfMaeh-
i-iinoii^ and -^ M^Ghic, ot Larg^e, and tluT
relidlious ussociates and accomptirrs, shacking
ofl'ail tear ol God, conscitiicc aad ^tasts of
duty, alteg^iaiit'et and lo^attie to hii majc^stie
tiier sovcraigae and uathc prtoc«, liave inosi
peHidiuuslie and irt^astmablie presuuied tn com-
initt, and areg-uilty 0* tTyroei* abo^e meationed
ID suulkre, as Juiid BnUour, of Rinlock altaji
capt. Burlidi David HaekitoUf of ItaUiUet,*
George Balfunr, in Gilhtuun, James Uussill,
in ketle, Kobf^rt Dine ^ til K a tenants aon,
ia Caildom, Aodrew liuiHan >V obiter, tu
Balmirinoch, Henry scms, sons to Joho
Henry son, in Kilbraclunont, and Genrtre
Fleyining', mti to Gtrorge r leyinini^, in Bal-
buthie, these impious and sacraft^ious murders
and murdering" reftiruiers, who to pn^ate
cbristiauitie, like Jesuits «ioe ii)iirder<;hrystiaus,
these enemies of mankind having gone in
April last tu the ton a of New mi Ins, in the night
time ibey did murder in cold blood f
A souldier in captain f compante,
aad left another of iha saidfi souldiers for dead t
* See his Case, Vol. 10, p. 791.
•f- Sic in Orig.
t Of this transaction the following is Wod*
row a account:
** From the paicellinif of the soldiers up and
clown, and their numbers 11 rid activity, the
keepers of conventicles were obltpred a iiltle
to alter their method. Tn»urds liit* eud of
ihB Laat year, [167B] «ome mi nii^ten/ began to
withdraw from preaching" wiiii tbeir bre-
thren, with wbotn they ussed to preach in the
fields formerly, who were now for entring ei-
ther upon the indu Igence or cess in their ser-
mons to vulgar auditories, and drew up with
the young preachers 1 have formerly spoken
of, aud continued to preach together witti them
pretty much on diese pointa this winter and
spring. Some papers before me, writ by some
4)f that side, say, Th;it (iekl meetings in the
beginning of tliis year were more numerous
than formerly, and many were obliged to come
with arms to defend themselves, becau^ they
were trequently attacked by the soldiers and
garrisons ; and for their safety as well as har-
mony, the miaistersandiuch who waite<l iipoii
them, resolved to keep as close together as
might he. They bad tbund that by preaching
in separate places, and scatter iug themselves,
iJiey were very much weakened, und the sol-
diers got advantage this way against them,
and sometimes the mioisterfi were in hazard to
be seised, and several of the hearers were
taken. Therefore they determined to narrow
themselves into one meeting iu such places
which stood most in need of the gospel, and
where they isigbt gather and preach in the
iud therefter having conceaved acnminalland
deadlie hatred agamest his grace the late arch-
bishop of 8t. Audi'CMs, and U|iou the thiid day^
of jlluy li)st, having cruellie, impioiu^lie an«l
sacralegiouslie murdered him, the\ U* esciipe
justice utiil iijFoive others in thei ^tiilt (^tiH
ftilslie (irclcnding pietie and religion, goe iut*r
the VVestenie shy res, and nnisi trca^onablie
jtiyue in arfnc^J with Robert HauMlimm, bro-
thfrrtothe laird (d* Prestou, Mr, John K.ae^
and titer accomplices* d<ssoUit and Aagitkiu*
peraoHii, to the number td' threscore aud up-
wards, who, upon ihe twenty nynllt <lay of i
May, a day appointed for a solemn annie*
versarie thanksgiving for his majesties Hestau-«
ration to the roy nil government othiskiogdorMej ^
did goe to the burgh of Hutb^^rglcn, and tber
most proudiie end treasonabtie haviit^ read actt*!
of their own coining, sihackiug olfther atleag-* 1
ance to his mjijestic, they most treason a btie and j
wickedlie burnt several! acts of partiafuentt as^
sertioghis niajestie's prerogatives, and tsisd>fish- ,
iogthegoverutneot of the church, droivnetlout
bonefyres sett on in commeration of that doy^ !
and therefur they trcusonHblie 4'0nvi»eat and J
assembled togither, the nmuber of four, rive^^l
aex or nevui hundrcth, or thereby, and did J
waylay a small and few company of men under ]
the command of the laird of Glaverhoiisei J
and did tnust cruellie murder and kill simie iiCl
greatest safety* Thus they cimtiinwd lor i
twenty sabbaths without intermiFsiMn Iroin De*- 1
ceniber to May. I do not doubt htii this ci»ors#i
thev took tended to heighten the separation j |
and when they were uh>ue without cou\ersiny j
with others, and preaciiint: iviili jicrsons morel
moderate, severuls who joyned mth them dii'j
heiglitcn the breach, aucf serrw up matt«'rs tliej
length they came to. J^Ieanwhile^ ilr, Wetsli'j
and others of his temper preached in otbe
places, with whom there were not many itrl
arms, aad endeavoured to calm matters
much as might be.
** lJ|»ou the 30th of Maj'ch tliere vas a ser-l
men and large tneeling at Cumbeihead, mi
the parish of LesinahagOj not tkr frotn Lanerk.i
The soldiers hearing of it, sent a good body nfi
men to dissipate thctn : Tlie patty undei^itand-
ing the numbers of the iiR^etiTtg, aud how weU
many of them were armetl, did not Hnd it con*
venieot to attack ibem ; but kept at some rlis-
tanre, and satisHed themselves with nHmn some
women, who were going to the me* iin;^'', of
their plaidj«, bibles, and the like, and seizing
some men. This coming to the knowledge of
the meeting, a good number was sent off iu
arms to recpare the prisonei-s, and the womeos
plaids, Sec. The commander ef the soldiers
refused both, and a scuflle ensued, wherem the
offictr WHS woundeil, aud some of the soldiers
taken prisoners ; but they were soon dismisaed.
When the account of tfiis came to Glasgnir.
my lord Bmhs aad the soldiers there^ ma^ch^Aj
lip towards Lanerk, und the country thercalf<
was sore harrastsed for some weeks.
** The accounts of this icuffle catue in to 1^1
I
32 CHARLES tl. Proceedings agahiat the Gordons of Edrkiiaun. [6(
persons who (last upon &e assyieof Oordom,
of Earlestoan, and others, returned ther ver-
dict io presence of the saids lords, wherof the
tenor followes :
The assise all in one voice, be the mouth of
sir Patiick Nisbet, of Dean, ther chancellor,
ffinds Mr. William and Alexander Gordons, of
Earlestoun, elder, and younger, master Wil-
liam Ferguson, of Ketloch, James Gordon, of
Craichley, younger, Gordon, of CuWe-
nan, ^— I>unlMLr, of Machrimoir, younger,
^iiihie of the crimes of rebellion and tr^^n,
in rcs|)ect of ther accession to the late rebellion,
conibrme to the depositions of the witnesses.
Sic SHbscribitur^ Pat. Nisbet, Chan.
6SJ
fries ; that he sawe Gordon, of Culrenan, in
armes with them at Hamilton-Muir, as also he
sawe master Samuel Amot in company with
them at Hamilton cotiM icientiit : he sawe the
saids persons at the jplaces forsaids and knewe
them belbr ; and tliis is the truth, as he shall
answer to God, and this he 'sawe a fewe dayes
befor fiotliwelbridge.
Sic Subscribitur^ J. M'Culu>ch.
Robert Park, messenjzer, at Sanquhar,
purged of partiall GoandU, solemulie swome
and examined, depons he sawe the rebells cuter
Sanquhar some fewe dayes betbr the feight at
Both wel- bridge, in armes, with drums, collora
and ane trumpet, depons some of them took
free Quarters, and some not; that amongst
them he sawe Gordon, of Earl^toon, younger,
Ferguson, of Ketloch, Gordon, of Craichley,
younpfer, in armes, and that be sawe them
march away the nixt momine with the rebells
towards Cumnock, depons &ey came in to
Sanquhar with ther swords drawen under the
notion of three captaines, and this is the truth
as he shall answer to God, and depons be knewe
the saids persons formerlie.
Sic Subscribitupj Ro. Parr.
William M^Geornty toun clerk, of Dumfries,
purged of partiall rouncill, and soleinniie
swome, depons that he sawe Gordon of Earles-
toun, elder, in company with the rebells,
marching throwe Dumfrcis in June last, a
fewc dayes lM.'for Bothwelbridge causa gci-
entia : he sawe him at ane kirk befor, and he
was called Earlestoun, elder, by those wer
present, and this is the truth as he shall an-
swer to Go<l.
Sic Subtcribitur, W. MArcEORGC.
Hu^h M^Watler, in Stonrares, being so-
lemnlie su«»nie, purged and exaniinei), depons
he sawe Dunbar, of Machrimore, voun*^er, and
Gordon, of Craichley, in armes with the rebells
at Haniiltoun-muir.
Sic Subscribitiir, Htcii M'WATrER.
The lords ordaines the assysc to inclose, and
returue ther verdict to-morrow at eight a*clock.
19lh February 1680. I'he said day the
Efter oppiningund reading of the whilk ver-
dict ofassyse, tiie lords justice generall, jus-
tice clerk, and commissioners of justiciarie,
be the mouth of Adam Anid, Dempster cf
court, decerned, and adjudged the saids BIr.
William and Alexander Gordons, elder and
younger, of Earlestopn, Mr. William Femi-
son, of Ketloch, James Gordon, of Craich^,
younger, Patrick Dunbar, younger, of Macn-
rimoir, and William Gordon, of Cuhrenao, to
be cxccut to the death, demained as traitors,
and to underlye the paines of treason and
utter punishment appoyuted by the lawes of
thisrealme, when they shall beapprehendit, at
such tymes and places and in such manner as
the lonls justice general, justice clerk, and
commissioners of justiciary, shall appoynt, and
ther names memorie and honours to be extinct,
and ther names to be riven furth and delate out
of the bookes of armes, suae that ther posterkie
may never have place nor be able hereiler to
bruik or ioyse any honours offices nor dignities
within tnis realme in any tyme coming, and
to hare forfault omitted and tint all and sundrie
ther lands, heretages, tenements, annual rents,
offices, titles, dignities, tacks, steadings, roumea*
|K»sscssions, goods and gear, whatsomever per-
taining to them, to our soveraigne lord, to re-
mainn |>er|>etuallie with his by nes in propertie :
Which was pronounc'bd for doom, whenipon
his majesties advocate asked and took instru-
ments.
05] Pr0U€dmg9 4|g«ffitl JoAii L^ri Bm^gengf. A. D. H(8^
Wi
327. Proceedings against John Lord Bargeny,* for Treason;
3S Charlies II. a. d. 1680. [Now first printed from the
Records of Justiciary in Scotland.]
CuAU j€tnciARi£, S. D. N. Regici, tenta In
Praetorio Burgi de £diiiburgb, decimo
iezto die Metisis, Martii, 1680, per tio •
norabiles Virot DonaiDos Georgium
K*Kenzie dc Tarbet Justiciarum Gene-
ralem, Thomam Wallace de Craigie, Jus-
ttciariee Clericum, Jacobum Foulis de Co-
lintouD, Robertum Nairn dcCStratburd, Da-
videm Balfour de Forret, Davidem Fal-
conar de Newtoun, et Rogcrum Hogfe de
Harcaras, CommissioDarios Justiciaris
didti 8. D. N. Regis.
Curia legitime affirmata,
Jntran^
John Lord Barganiej
TnDYTED and accused, Tbat wber not
withstanding be tbe common lawe, and lawe of
nations, and constant practique of this kingdome
and paiiicularlie be the twentie-fyfl act of the
•ext parliament of king James tlie 2d, It is
sUtot and ordained, that if any man committ
or doe treason againest the king's person, or
bis raiyestie, or receipts any that has committed
treason, or that supplies them in help, redd or
eouncill, they shall be guilty of treason ; and
■ickiyke, be the hundreth tourtie and fourth
act of the twelth parliament vf king James
tbe sext. It is statiit that wherever any de-
claired traitor or rebells repairs in any part of
this realme, non of his majesties leitfges shall
presume to recept, supplie or iutercomon with
* " All the account I can gi?e of the trouble
of Jo|in lord Bargeny, in the shire of Air, is
from the registers. He was susnected to
fiiTour the cause of liberty, and to be of the
other side from the duke of Lawderdalc ; and
last year after Bothwel, some surmises were
raised of his favouring the people concenied
in that rising, whereupcn he was made pri-
soner in Blackness. In the council registers,
December 4, last year, just afler the duke of
York's coming down, I iind a report from a
committee who had been appointed to examine
him in Blackness, that they had taken his de-
claration, which is read, but not recorded.
That day the govci*nor of UlacknesK is allow-
ed to permit persons to speak with him in
luB own hearing, and to gire him pen, ink and
paper, providing he see whatever lie writes.
At the same tioie the advocate produceth a
letter from the kinsf ordering him to pro-
ceed against the loru Bargeny, as having in-
cited persons to rise in the late rebellion. No
more 18 about him in the registers till January
14, this year, when their act about him runs,
** Aoeat the petition of John lord Bargeny,
VOL. XI.
them, or to give them any releiff or comfort^
, and that immediately upon knowled|^e of ther
] repairing in the bounds all bis majesties obedi«
> entsilhjects doe ther exact diligence in searoh*
I ing[ and apprehending the saids rebc4ls and
! traitors, ana that with all speed they certifie
I hismajestie or some of his secret council, or
some persons of authoritie or credit, within
' the sliyre, that such rcbclls are within tho
' samen, under the paine that the saids traitors
' and rebells ought to sustaine if they wer ap«>
prehendit and convict be justice, and be tna
fourth act of the sexteint parliament of king*
James the sext, whosoever invades, or persewea
any of the lords of session, secreit eouncill; or
an^ of hifs majestie's officers for doeing of hia
raajeslie's service, shall be punished to the
death ; lykeas be the lawes abd practque of
this kingdome the designing, contryring, o^
hounding out others to massacar and assas*
sinat his majestie^s commissioner and repre*
sentative, is in itself the cryme of lese majestie^
his majestie's commissioner beings in the con*
struction of lawe, his hyncs representative, and
in place and vice of his royal I persob : and be
the second act of the second session of hia
majesties lii*st parliament. It is declaired, that
if any person or persons shall, by wrcitincf,
printing, or be any malitious and advised
speaking, expresse, or dcclaire any words to
stirre up tbe people to the hatred of his ma-
jestie's royall prerogative and supremacie, in
causes ecclesiastick, or of the government of
" that he hath been now two months close
<' prisoner in Blackness, occasioned by the
'* suggestions and malicious informations of
<* his enemies, and he being conscious of hia
*< innocence of any disloyalty that can be laid
** to his charge, and that in his heart he did
" never harbour, far less did he ever practise
" any evil against his majesty or government,
'' craving that he may either be liberate, or
** presently put to a trial ; and tliat in the
<* mean time, or since his imprisonment, there
^* may be no process, or decreets of sessioa
^* moved in, or given out to his prejudice, hia
<* adversaries at this time being ready to take
*' advantage. The eouncill ordain the said
** lord to be brought in to the castle of Hdin-
** burgh, whenever the advocate hath pre-
** pared his indictment.
« This matter is still put off till the end
of March, wht^n I find him before the jus*
ticiary . The managers had a mind to have had
his estate, but their prohution failed them, and
the crimes in his libell must be reckoned of
the advocate's framing.'' 2 Wodrow/p. 151*
F
67]
32 CHARLES IT. Proeeedinga against John Lord Bargeny, [68
the church, by archbishops and bishops, as it
is now settled by la we, or to justice any of the
deeds, actings, practices, or other things de-
claired a^j^inest by the said act, every such
person or persons so offending and being le-
gallie convict thereof, are declaired incapable
to cxerce any pia6eor imploymcnt, civill, ec-
elesiastick, or militarie, within thi^ church, or
kiugdonic, and are lyabic to sach iarder paines
as are dewe by the la we in such cases. Ne-
Tcrthelesse it is of veritie, that the said John
lord Bargany having shacken off all fear of
God, respect and regaird to his majesties lawes
gnd person, his native prince, and to whom he
was in ane more eminent way obleidgcd, his
majestic having raised him and iiis predicessors
to be peers of tuis his majestie's ancient rcalmc
and heredittary counccllors tberin, and having
licstowcd upon hiin and his family extra-
ordinary marks of his bounty as well as
favour, yet the said John lord Bargany for-
gettini^ all these obligations, and the horrid and
fircadtull effects of that late rebellion which
did ovoiihrowe the monarchie, and enslave
and depau|M?ratc the subjects of this kingdome,
and hoping as it sc^emcsto raise himself by such
new coni'usions and rebellions tu be a chieff
ringleader in and disposerof the government
of the kingdome, from a share in which go-
Tcmment^ suitable to his fancied merit he
thought himself excludit by the present choise
of his majestie^s odicers and servants, he di<l
theriur most treasouablie in ane or other of the
monclhs of the years 1074 or 1675, with
gri-at onthsund execrations, curse some of the
chic/riiiibiliticof the king<lome, because they
would not make tlienVselves the head of tho
phunaticks, and swore that they w onld never
signifie uiiy thing because they hade lost that
oportnnitio*; and because hisi grace the duke
of I .uiulcrduie liadi.', by his extraordinary pru-
dence,* care und loyaltie, delate the designcs
tliat he and the said phanaticks wer inanngeing
for disturbing the government of the church
and state, he did in aiif or other of the miMieths
of the \cm-s 1077 or 1678, puUictlic regrate
that the English or the phanaticks did not kill
and assassinat the said duke of Lauderdale
and did hound out* and intvse others to assam-
nat and fall upon him in his own bouse, and
particularlie in the raonethsof
1675 or 1676, he did indeavour to perawade
George Martin, nottar, in Dally, who then
lived m this land, that the phanaticks would
never gett ther bussenes done whill the duktt
of Lauderdale was alive, and that ane ban*
dreth men would doe more to assault him in
his own house of Lethingtoun then all tliej
could doe beside, and because he would not
complye vn\\\ the said lord Bars[any'8 inhuman
and cniell designe, he did still thcrefter dis-
countenance him, and declaired to his friends
his bye dissatisfaction with him upon that ac*
count ; lykeas one Mr. John Welsh, a fac«
tious trumpet of sedition and treason, and for-
fault for the rebellion, in a.d. 1666, having
maile a constant trade of convocating his ma-
jest ie's snl^jects in treasonable |eild meitiDgSp
the said lord Bargany did keep correspondencai
with him, and having direct a letter to him
whilst he and his complices wer contryviny
the last rebellion, he did send the said letter U>
Sauchhill by his own servant in May or June
last, which Ving read at the said conventicle
as having come from him, did incourage and
esti'emlie invit his majestie's subjects to ryae
in th|t rebellion, to which rebellion he did bjr
all means invite and drawe in as many of liia
freinds and followers as was possible, and par-
ticularllie he keep*t ane correspondence with
— *— Cuninghame, of Bedlaod ; and, amongal
other letters, he did wreitt to him one aboot
the beginning of June last, which was imme^
diatlie befor the rebellion, whereby he eam-
estlie desyrcd the said Cuninghame, of
Bedland, to rep:iir in all beast to the WesUand
army, and to move and perswade all gentle-
men and others about him to joyn witn him,
wher they should see the said lonl Bargany
himself snortlie, to which rebellion he might
invite the [Hjople with gi-eater ctJiifnlence, be-
cause it was Lilt they allon that sh!)uld counte-
nance that buhseiiifs, but persons of fare greater
Ste the Case of tho duke of Lauderdale, I qualitie, win) would assuredlie joyn with and
vol Ci, p. 1025, of this Collection, and the ad- I own them in that affaire ; and albeit many of
dilit>nal < luirtrts a;;ainst Laurlc;rd:ik- in ti:*- < the said John lord Borgauy'sown tennents
»oint'rs Tniti :. 8te also in (h«^ Collection ci" j hmie bein in the said rebellion, vet he did not
State TuiL'ls fioni the year 1600 to 1603, pub- give notice of them to his raJijostie*s privie
iislied in 169'2, pp. Q3, 0C\ * JSonie pa/ticiilur
matters of fact relating to the a(!niini:.!iaiiou
of affairs in Sf.oiland undti* the uukcofLnu-
derdalt',* and the impeachment ol' the duke
and duchess of Lauderdale, witji I'ueir brother.
couuoili, shirriffs or other officers, hut did in-
tertaine those that wer nottor rebells in liia
liouse and 8i?nico, and particularlie ■ —
Mitchell, nephew or cousin to 3Ir. Jamea
, , BiUchell, who hade bein execut for many exe-
Jiiy lord Halton, presented to !iis -Majesty I y ! crable treasons againcst his ni^jestie, an<l who
the city of Kdinburgh. In private, CharU's I himself was in the late rebellion in a.d. 1666,
acknowledged that mi;ny detestable things had j and Andrew M*Clarkin, whom he keopt in hia
been done by Lauderdale against the Scots, | o>vn house and service elUr he hade returned
but that nothing against his service had ap- from that rebellion to which he hade houndil
penrcd ; a sentiment not less dishonourable than
nalnral to a sovereign, who, when he s; i»arates ;
hiv ow n intoi-€St from the people, Ibrgets that '
he creates an interest in opposition to the throne. ,
Sec 4 Laing, lo^^ edit. lUOl. j
him out ; and also in the moneths of
or ane or other of the dayes of the
samen, the said John lord Bargany did pub-
■k
* See a Note to vol. 10, p. 1048.
Ik'tlit' TTi^iTilnin*? thf? prtnnT>l<?« of Nepthali , JaS
lu. f all miii'iler fttiii
irCiiaon^ <iri ilAwl would never
he well till ii icie^ or ttie present
gtifprnttierit uj mc tunrrii wer destroyed m
uotlti (or ilie riation ; and in the nionctli<} of
Or'"' ='" '"* No\*eniber last, lit did oppinlit* d«-
cl L si the ^crcd order uud function
.,.. ^ ., ,.jie, Rwearinjjf tlial wc would ne^er
m peace till the currtt* wer routed out,
pid that they wer oil but knaves and it)|;^K\f :
lierthmHe the said John lord Bargany has
pmtniU4.'d» and i^ i^udiy of the tr^asonaltle
iirymes and otlicra aUcne TTiontionrd, and is
actor nirt and pnrt tlieruf, which being found
lie aiie aasjNt.^ he ou|rlit to be punished with
fi^rfanlture of lylf, lund and i^nods^ and other
line* above mentioned, to the terror and ex-
Dpte of others to com mitt the like hereiler.
Perjfa>cr.^8ir George M*Kcu/Jc, of Rosc-
haugb| our itoverai^i lord'^i Advucate.
Procuraion in Defence. — Sir George Lock-
hart, sir John Cutiini^huine, Mr. Wni. Hamil-
ton, 1^1 r, John Elies, 31 r. Robert Stewart, Mr
Roderick Mackenzie.
Sir George Lockhatt^ as pr«>courator for the
defender, craved he tni^ht be putt to the know-
ledge of ane assyse^ or that the dyet mig^ht be
deM-rted and he set at lihcrtiet
His Mnf€%tle*i Advociile alleailges, That he
cannot l>e ohleidi^-eU, nor can he in duly to his
inajcstie's iiitcrciit, putt the pannall 1o the
knowledge of anc lussy^c, bcc4iuic he did not
jfett a coppie of tU^^ first and «?cond humtnondes
of excnlpulioo, witlmut which, theli^lufthe
vitnci^vs sii^uiiU'd nothin^^ bt;cau^e it is the
rcoMms in tlic cxculputiun that inf»1i-uct» hini
toMhut end the witne?«e* are adducetl, ana
ron<^piervi1y by which he b only hiistructcd
howe to cast these wilnc^cs with relation to
thii*«e poyiitH for which (Iicv art; to he adduced ;
and be tuc elcvinlh act of ute late aclf of pur*
lifinirnt, ic^^^^uliainj;;' the justice court, it i.s most
clear, thai Mh lyLwlUand e\cul]jation» should
he cxccut in ihe nuuie way and inanutr, and
tue jure para ttimnu
8ir Gcurgc LackAari answers, That tlie oh-
ion proptined be the kin, ^ * ' ;a is not
in pe ten I hoc ioca m iin/i ..^ but is
[|y competent apiincJit iht |Fi-.r m« -n, :ind the
reftMm is most evident, iM-fausc thooi^'ii ihe ob-
jirii .n ti**r founilit in lavvc, us the paunall
hi ueuics ii in not, \i^ it tends only
to ^ lite pannalt of the lH;ne1ill of ttte
exeuipatjon, and whcrby hiii mujestie^s aUvoeut
han un pn pidtce nor dii»uilvanti}^-e ; hot on the
* ' I he wer Jibic to uddocc any relevant
pi I the lybcil, it uootd reinuine un-
|)ri;^udg4id by tlie excul]ia!ionf it bein^ the
* T' -r piddrcatjAna on the part of the
i» The title of that heieitnit incu-
I Bo io llic Urij^ual,
^Sj
A.D, 16S0, [70
mxtm case ia lawe as if the exctilpation hade
not be in raised nor ^xet*nt.
2d. Though tlie 4tt«te of the prcteea conM
adrailt of the objection, as certftinUe it cannot^ "
yet (t has no ground fitmi the act of parliament^
J and it is impossible to infcrre any such thitjfl
from the act of partian^ent, that ane pammll
havcing anc just and relevant defence in \hwe
for defending- his lyflT, honour and reputrnionp^
and ofTerintr to piH»Te the ^an»c by witnessc%|
ni^atne^tt whom thcr \h no law full objection|J
that such a defence cane be repelled, and con-*
set^uonllie ane innocent man condemned^ and
the true import and sense of tlie net of parlia*
mentis only thiii, that w her a panndl thinki'
titt to raise a Jiummond!4 of exculpation, anil ^
to have the benefitt of dilltgenccs, in ease hif'
witnesses doe not cotnpcir \u that case, he
most obsene the foriualit) of the act of parlia- j
meut^ but w hi^r the panu.dl will uud«^ri(f>e the
ha^iirtl of a try all, and subject hifl inuocencr
to ane assv?»e, w hilhcr the w ilnessc^ he cits foL
provcing" fiis defence comj>cir or not, or woulj
olfer to (irove hi*i defrncc, either be his jtidcfei
or he members of the impie<;t, or any other
persons present, it ix tlicr thi* irrefrattuSle opt-,
nion of all biwyers^, and practise of utl ciinimalt
tribunalU in the world, tliat such a defence and
probation cannot be repelled, and thereby ani
itmocent man condcimird, and \^ hie h ii6 suit
able and consonant to the practise of the bird
of justiciarie, ther bdiiig- nothiUi^' more ordi-
narit' even nince the act of pailiamcnt, then to
sustinnc relevant defenctiti pro[ioued prr modm
except lonh, and noi pcj- modttm ucttvnts^ jir th
nature of evculpations are ; and the acl of pap
tiament as to the poynl of allowing i^unimondi
of exculpation to pail null ^ being mtroduceil id
ther favours^ cannot b*." detorted lo ther preja«
dice, es(>cciaVlic lo prejudi»;ii them of the lK'n<2-i^
lilt of the lawe of nature, and nations delences
l>ein|> (/c;w;c na^ur^, and most pn)perlie, and
of ther o VI n nature proponablc be way of ex-
ception, and as the pannall hunddieconccaveii
the pounds ftbo\o mentioned to be foundit
upon the clear principles of lawc, so lo con-
vince tfie lord'* of justiciarie hovve mnieeesiiaryJ
this debate is, it is o^ercd to l»c ni'ovcn by J
William Ghvcr, the pursevanlS outh. that he
delyvcrcd a list of Ihe wilnessen to my lord
adiocat, and whicli docs fuUie saiisfic the act
of parliament, which does not reqnyre the
«unvmonds of c.vculpuiton to Ih* exccnt, but
only thul a list of the witnessi's be cfivcn ; and
this the paunalt pmpons tu thiselfoel, that if
he think tilt, he m:iy have the full l»cncfitt antl
privilepfc «d' his exculpftlem in case any of the
materhkll wiln»*s*e« for pro^einaf Ihend' hi- ah-
sent ; lykea.s the exculpation ujw produced the
last dnVf and pubhctlte read, and bear'* no
warrauil tor gmnij a coppie of the rea^utp
thcrof to my lord a<tvocat.
Ills Mil Hi tics JJrot<^if replyes. That asto
the t ' ' * ' n J
the n
IS sxiost compytcnt hut liKtf^ «mcc he wats tlicrq-
n^
32 CHARLES tl. Procee£ngs against Jehn, Lard Bargeny. [71
by in hon&
dyet being
•0, but he ^ ^
ignorance howe to manaire the pruces, for his | cutt off a pannall from a just det'euce and wit-
majestic and tlie kingdomes interest, in suae I nesses, because he wanted aiie exculpation,
fare, as he could not knowc which way to find | and as the justices have verie otlen, and veiie
out the strentfth of liis own probation, not justlic allowed ane new dyet, to ane pannallj^
knowein^ howe his probation might be eleidit
by the exculpation, and tliough he gott a list
of the witnesses, yet he 0(ipoQ8 expresslie the
act of parliament, which paralclls the sum-
monds and the exculpation, and therfor as upon
the whole matter, it would have bein a verie |
rd preliminarie defence to the pannall, why
c*ould not goe to the knowledge of ane in-
queist; that he gott not ane coppie of the
lybell, and that he hade gott it, but ther is no
execution againest hiui, or that he gott not :^ie
list of the Witnesses, subscribed by the advocat,
as it wouUl be tor the advocat that he gott
not a list subscrybcil be the pannall, because
upon either sydc this is the only check to
koowe what true %vitnesscs wor trulie given
in list, so ought this to be a sufficient prelimi-
narie defence for his majestic, who, without
this, could not knowe what was the import or
strength of his own probation as said is.
As to the second, his iMiyosties Advocat ac-
knowleilges, that Ijcfore th<? late reafulation of
thejustice court a pannall might have at the lord (Jochran, and to sir John Cochran,* who
whcr his exculpation was not deulie raised, if
his was proposed before : the proces was al-
tered upon as here, so it wer as great injostioe
and cruelty to the common and publict interest, *
not to sustaine Uiis as a preliminarie defence,
in favours of his majestic, and would in the
event, upon the paritie of reason, prove greet
cruehie to the people, since they behoov^ to ,
gctt the same measure; wheras in equities
fair and eouall tryall, and what may tend
therto, is ttie common interest of both and of
each apairt.
His Mitj€itie'$ Advocat adds, that the ]mg
having doue exact dillig^ence, and returns of
the dilligence having bein showen to the jus-
tices againest witnesses which are knowen to
be necessary ; the dyet ought to be continued,
especittllie seeing Craige, a witness, coining in
upon a warrand fmm the justices, he was ap«.
urehendit in his way by Alexander Crawfura,
balyic dcput,of Cuniughamc, deput to the lord
IV]ont<romet'ic, who is bruthcr-in-Iaw to the
bare caused cxainin witnesses, even as, and
because witnesses might have \w'm adduced for
the kin^ at that tyme, without giving them in
list to tiie pannall, and it wer just that the pro-
cedor sh«'Uld have bein equal! upon lifith sides,
for as it is the interest of the pannall that his
innocence should have hem dclendit, so it is the ^^ „,^j.^ ^-^i^, ^^J^ ,,^ ^^ ^ necessary
much greater interest ot the common wealth ^„j jj, knowen to his majestie's privie
«e cruinna n.aneant inipunitH ;» and yet. not- ^j,^ ^^.^^j ^^^^ deposition.
withstandini:: ot this great and important rea<
son, it is uii(U':iyul)le that nowe the king could
not prove the rifarest and most im|>or;ant
crynic ii. tiie Horld, except the advocat hade
given in to the pannall a hst of the witnesses
to 1)0 adduced, and therfor since the late act
iias taken aua\ this just priviledge from the
kin<^ : competent to him formerlie by the lawe
of all nations, and by as strong reasons as are
now alleailjj|;ed for tin? pannall, the saiil act and
article did jiisilie allowc the king the same la-
vour that it did to the pnnnall in eqiialUng
both ' aci s, and the reawin inductive of this
fnoiir cravjvd by the people did militut as
stron^lii' tor the king as lor them, viz. that it
was huid that \«itiiesse.ssli(.'Uld he addiired who
might ha. e l»rin parlies, or ly. hlu to just ex-
ccjUionN, it l.< .riir iiiulrnyalde, that the king
aiid ihe j.niilct interest may l»o as mucli pre-
judi,^d \t\ J(-.tit)n£^ c.\i'e|rtif>n*d)le \fitnes!»es for
eleMhntj il the ti\me, as the pannall Uiay be,
hy SnvAx l»'.iMdlie evposed to the mearsofane
iiiireitaiiie a^id mikntrvven probation, and what-
eiei- UMkrhi l»i: said in this case for securing the
panniH's Ivtf, in tie not ntlinitting a u itness
vher Iher is the lea^t hazard, yet there cane
be no sliaddi?ue why this sho dd not be receiv-
ed, when tlic itn[>ort is oiil^ that by a delay
are now u|K)n pannall with the lord Bargany,
the said Alexander Crawford being advertised,
that Craig was coming in upon a securitie
given be his majestie's Advocat, which be ooo-
temned, and said he would take that on his
ha^eard, and his majestie's Advocat is content
witness,
counciU,
depos
Sir George Lockhart repeitts, and oppons
the former debate and the act of parliament,
and alleadges, that it wer a preparative of most
dangerous c()Usequenc*e to lay any such fun-
dcition that )>annalis accused m criminall
processes should be prejudged of ther defences,
whatever way proponed, either bti way of sum*
uiouds of exculpation or be way oftxception,
it being a certaine principle in lawe, that as to
defences and probation nunijuam concluditmr
contra reum^ aiid that ther defences may be .
proponed at any tyme befor encloseing of the
assyse, and ther is not the least collor from the
act of parliament to tyethe pannalls, to propone
all ther detieuces by way of exculpaiion. As
to the second, the pannall repeiits and oppons
the nature of cnunnall pnK'csses, wherin tlie
flyets are peremptor, s|ieciallie u|>on the part
of the accuser, and all that ever was allowed
was in case the witnesses did not appeirat the
first d\ ctto grant a farder dilligence, and which
aceonlinglic has l>ein indulsred, and the
lords of justiciary, that some of the witnesses
wer formerlie ahicnt, ilid continue the dyet
* ISec his Case in this Collection, vol. 1%
p. 989.
r
till t1i)« ^ty, uitl tberfor lii>i mAje^ttu*i ail-
%ovatl oiijyftit to have conw lullie instructed noU
I Di> prt'teuce of tlie ahsente oi any oi' the wit-
I BMR9 oa^l in justice to b^ any j^fround Tar
^^aew pfOfOf Atioiis, >Mid to keef> tt)e[*&uualU wlin
^^b wtw reiuUe «t tbe bare, to subject \m inoo-
^^Hhici^' to the iitrit:tc«(it tiiquirie mid tryall uucter
' 1^ iod ittiputatinti i»f fet* hyt* and at-
li . nKf*i, and to cootintti! Liiii in wurd
dtcr tyvf^ tiionethii imjtrlsuiiment, and ettcr he
has bein at rxtniordinury expense und trouble
tocite tbrescore tfn \%\ Ik his e\cu1pa-
tion^ nii>sMil ibem i'riM y» and iriiom
it b iniftosMble tor ttii* |i^ijuiii to bnn^ still
lien.' to aitcbd iiDccrtaiue dyeta at'cnnunall pro-
€«*»**»» and riM ' -^ .. f - - nisidertd the i:uce ol'
puiuiJiilt^ i^H t ouviciion, and a& it
were iuipo&b. , , . ,. ,.„,,. .^Jl t4) pretend or have
allowed any tknlar dili^eure tor producring*
hia witnesa in une exculpation, ho iber in tare
lf«arf reaaOD lo altuv^'e pruro^ations ol'ilyets in
lafonr» *>f accusers, aud as to Ibe pretoncc tliut
one of the maieriall witnesi^ey f i;t» bein deti^iined
by the bttlyie d<*pu(, of Cuniitgbame, it is ab-
soiiitlie dcnyed, and it cannot iu tbc least be
|ire^arucdf that any person cloathed with
AUthoritic tlnn^t have advci»lured or prexMined
10 slope or liJuder any witnei^sc^s ubo \ier cited
for his tnajcMie^ii intereisl and ser^ice^ ^rt
tliougb any HUcb I h in y^ could be (jUiilifitHl^ it is
not in tbc Ipust reJeviiitt. itntes»e it cuuld be
made appeir that tbe p»inhull hnde accession
tiicrto^ wliich tsubfiulutehe refused ; und on the
contniir, tbe pannuH an<l \m friends bave u^ed
ail indenvour^ to brin^ tliiii matter to a trvull ;
it beidi; txinH^ribuM) tiard ibnt be shouhl
continue in tMipri>u»niiu-nt, and under tbe
fitmini: Hod intpmuLton of mi bye crirurs upon
pretence *d the ubiruce of \f itncn^e^, and an-
pc<litiMtibi *d tho» kiud may Ije nuU obtnidit,
aud tberet'or the ptt»itinM rrave** ihe beniHt oj'
1 1 V iohdde pi^eedor ul
'cat having- ^ottal-
•iires biHtf imd the
I milt olp an4l if the
sucli nialver^arion
udvoeat by tbe se*
-,. .,,v. » prevf'ttt tbe dunffer
i'S^ iind bti!i iiiiijextteH interest
iin- dyet wcr de!<ei'led, sinee
utiieieiit ground lo in-
it for any of tbecryuies
lilirlJedf tt tv but uinitlutii tib inttuniia, and
«afinot preju4ij,::Ct and tbe punnuU i:^ a pei'son ot'
it rhiiriicler and iptuiitie, and of that eouf^ide-
jion, a»i t<i foriouii, that tber is no fear he will
Ittthdru^ve himtielf.
The lonJn m reipect that his majeiitie^s ad-
V' ' woiiie of hi!< mulerial vrilncsfces,
li* hu^ tbai he bu*( used all pos»iUe
dilir^i 11 u»r adducein^ i' I alw iit
reaptrct that the pannaU bail- A to jfive
'f?« SFJ" f^w^Wr
' of them on
and ttie v\ 1
L of three bij
liivie;&iiii ju
thn» courts d
n '
b
as
Ot
C.!
il
ad'.
hv. ,
iiW thcst^ond i>i
Mne the aasyierb
■ ^t i*,,,..i.i.kj, and a
i'§ b>r pioveuig" of
eontinoo lli«» t\yrt
iune nixt, and or*
I utdiat lyinei i^ch
^'^ ^f^ine of ane thcroaand merlca,
yU of tbem, under tb e paioa
I Uifit ftluje^iiica Advoeat takes itiiiirunieiil
I upon the lord Straibuavcr, tlie h>rd Coijif.iiijl
1 ail- John Cochran, Baly ie, of L^ i
I Ketmeily, of Ciilzean, and'lla%id D 1
I brother to BI^Kany, tber entering^ the |»4nuaU
%vith the lord Bargany*
l^thJune, 1680.
Jut run J
John lord Bargany,
Indyteil and accused for the eryme of trea*
fion, sedition aud others mentioned in hit
diltay, which i^ reconlit in the lunfks of ad*
jodtnal upon tbe siCxteint of March tai*t ; as
also indyted and at^cu&cd for that, upon ane of
other of the dnyes of May, June, July, Aa-
guul or September, he hearirii^ that his grac
the late archbJ5»hop of St. Andrew 's wm mur*
dered, be said that it was w ell or happie, for he
was a ^oat enemy to tbe caute of God, and
bis people or thekirkof Chrisf, orsonie such
words ; lykas he, or f»omc by btscouHitand, or
whom he r^itihabitcM}, did orfer armes it^ Jame
Kennedy to goe to the late rebellion, at lea
he wrcs offered armes in tbe said lord Bar- '
gauy'i* h«>use for that effect,
Penewers — 8tr Georg-e M'Kenzie, of I
lianght our S'lveraigne lord's Advocat*
Frvcurtttori^ ut ante,
Mr. Willwm Hwftilfoun^ Advocat as pro*
eouiutor h»r the lord Utiivany, prmlnced in
presence of the sarrh lords, ane at^t of his ma-
jt^iie^j* priTK' council* vibeiof the tenor fol*
|otv#*: ** i.dinburgli, ibe tbirtl of j!H»e, lOBO;^
♦ ** rhe kniiii « Letter, upon which tbii
pnicfxjs fs stop|>ed, bears, * That be hud re*
* ceivetl a puuoii from ttie lonl Hiir^.^env, re*
* presenting Uis \ irher*a loyalty and suiTerin^i^!
* aBscMtiu^ his innoc<-orr of th^ crimes he is in*
^ «l<cted for, and attebini!^ Uoil thereupon, and<
' his niaJ4'sty itemn unwiltiui^, he, or any ttub*
* jert should r*M?eive prejudice by loiij^ iuipri*
* sonmeut, until there u}»pear etident proofs ol
* their |;;iwh» retpnres him to be liberate, uncfcr'
* fiurhcietil cuutmn to appvur in onler to trial,
^ j1 hereafler sufficient piuof&t of bis uuilt be
* lounif* And that this letter be conununi*
*" C^ucd lo tbe juitice-couit aud advocate.**
*2 Wodrow, 153.
** March 16, 1680. The lord Burjfnny wai.
both tlje 1st *Uy of ]Vlarcli, and I his i\»y on
the pannall, and waa, after niueh delnitc, con-
tinued and sent hack to tbe castle, on pre
ihal the advocate wanted Bottie of hh malenal
witiicfcws against him ; as alvi he gave li
aonic additional articles, anent bisi furniKhinj
men witli arntes to tbe later rebellion,
** June 5d. Ai pmy onioeill Uml Bar]E;fa!
W}|« liberated, fintiin^ cautmn to appear
calkd uud«r pam of 50|00U mcrki/*
FofiotttiiMI*
wbemi
3
75]
33 CHARLES II. Proceedings against Alex. Blair and othtrs, [70
the lordi of his maji«tie*s privie counciil, in
obedience to his majcstie's commands, signi-
fied to them in a letter, under his royall band,
of the eleventh of May last, gave ordor and
warrand to tlie governor of the castle of Edin-
privie counciil that he shall compeir befor the
lords of counciil whenever they shall call for
him in ordor to. his try all, as to those cr}'mes
for which he stands mdyted befor the lords
commissioners of Justiciary, under tlie pe-
nalty of fyftie thousand inerks Seotts money Uk
caice of faly ie. Extract by int'.
Sic subscribitur, *» WIluam Paterson."
The lords justice generall, justice clerk and
commissioners of justiciarie, in resjiect the
kinff*s Advocat (because of his majestie's letter
to the counciil and the act of counciil intimat-
ing the same to ther lordships) does not insist
against the lord Bargany, therfor deserts the
dyet simpliciter, wherupon the said lord Bar-
gany's procurators above named asked and
took instruments.
328. Proceedings upon a Process of Error,* raised against Alex-
ander Blaiii and others, for the acquittal of James Dick
and others, indicted for Treason and Rebellion : 33 Charles
11. A. D. 168 h [Now first printed from the Records of Jus-
ticiary in Edinburgh.]
and inviolable practiq of this kingdome, and
spcciallie be the 61th act 8 parliament kin^
James 3rd, It is statut and ordained, that if
any of our subjects choiscn upon the assyse
of any criminall persons doth acquyt them bs
temcraritie, or wiltullie be favours or parti-
alitic, they shall be put to the trvall of ane
assyse of twenty five persons, and being con*
vict thereof, shall be punished efter the formd
of the auld lawes contained in the book of
Uogiam Majestatcm, and be the Uth chap.
1 Book Re^. Majcst. the pain of them that
comniitts wilfull error upon ane assyse is de-
claired to be tinscll, and forfaulture of all ther
cattell and other moveables, to be inbrought to
tbe king's use, imprisonment be the space of
ane year and day at the least, and that in all
tyme coming they shall tyne the benefitt of
the law and of the land, and shall incurre the
paine of infaniie, shall never be heard as wit-
ness in probation or in acquytance (or purga-
tion) nor to make ane oath befor ane judge nor
in any other kind of matter : Nevertbelesse it
is of veritie, that the saids Alexander Dlair^
■ Lewes Johnstoun, and the other persons above*
named, beinijf in ane court of justiciary, liolden
within the 'j'olhtiith of Edinburgh, u|>on the
Itith day of ]\lurch hsi by past, by the lorde
justice clerk and commissioners ot justiciary.
CoRiA JusTicMRLi, S. D. N. Ucgis tenta in
Pretorio Burgi de Edinburgh, decimo oc-
tavo die mensis Julij, 1681, per honora-
biles viros llitchardum Maitland de Dud-
don, Justiciarifc Clericum, Robertum Do-
mmum de Nairn, Dominos Jacobum Fou-
lis de Colingtoun, Da\idem Balfour de
Forret, rt Davidem Falconar de Newtoun,
f 'Ommlssionarios Justiciaritc dictij S. D. N .
llegis.
Curia legitime affirmata.
Intran,
Alfxandfr B!air^ merchand,
J^rucs Johnstoun y merchant.
Thomas Nohfe, merchant.
Captain John liinnhic.
Alex. Hot hu elf, of Glencorss.
Jo met Baillic, merchant.
Mr. Andrew Temple^ of Ravilrige.
Jowts liaird, of Suucktounhall.
Hnbat Sandicfand^t merchand.
Hobcrt Elliot Wiifht.
A/cr. Ilenrj/sout of Nowchavcn.
/// mts G ray, < >l* W arics! oun .
John Dunuitj!, of Han'iestoun.
InDYTED and accused, that whcr, notwith-
standing be the lawes and acts of parliament
■ ■ ■■ ■ •
* "C)fold, before inclosing the jury, the
Lord Ailvwatc or prosecutor used to protest
for an Assi/c of Error at^aiust the Inquesf, if
they assoil/icd. [Sec an iustance of such a
Protest iu this Collection, vol. 10, p. 790.
Sec, also, vol. 10, p. 855.] This Great Assize,
as it was called, consisted of twenty five noble
persons, though alWrwards, in practice, landed
men were sastained : [Act of Sederunt, 7th
June, 1591] who were to inquire, if the jurors
were Gfiiilty of irilful error, in their verdict ;
and the DiuuihaieQt was escheat of moveabla;.
infamy, and one year's imprisonment. [Iteg.
Maj. I. 1, c. 14, ratified purl. 1475, c. 63.1
But the pannel, who was ac({uitted, remained
so, and couUl not be brought upon a new trial.
Assizes of error were justly complained of as a
grievance at the revolution, and are now obso-
lete. By such assizes, persons who attended
trials as jurors, were greatly put in fear of beioff
punished, instead of being rewarded tor their
trouble, and the sulijects were unsecure in their
lives and liberties, by the prosecutors, in many
casesi threatning the juiy with an Asuze. St
^rcctis 0f Error,
dioi^n. recfAveil* sworne mid atliiittteil u|i«]i
%h' f Willtani Dick, in Liintrk, Janie*
I' ' jlm HunrLIe ihcr^ Tbo. Hinsful-
wotHl rljgr, llu((li fSouienatU, o( Urnil*, Jaiiitrs
Mrror Itihty " f thciiaunelby their ver*
dtct; and, i i^ lhi^)»c a;;!>ize€, sucb
fears arc fv.. ,,v... au«l people* riglitsi and
liberties are iI^Uverc<l fVmti luch danger."
Lombmrrs ** Ponu uf I'll »ce?!s More the Court
of Juaiciary in Scotbnd/^ &cv. p. Ud| edition
0^1752.
In tbe " Acts and Orders of the Meeting' of
the Eslftte* of tbe King^dom of 8t'otlaml,"
ActlStb, April 13, 1689, entitted, ** The arti-
cle of erifrancrg repre*«;cnled liy Ibe vetiit*^**
of ^ iSemlnnd, to tbu* king's most
ex . to be redre«"jL*<J to parUa-
tnent, uu^ .>m repR'jsentalioti is» '* I hit Assizes
of Error are a irrievance, noil ihni juricb be
considered b- ■ ' • ' " t Idonottind
way pavhdMii ist ifie Assise
of*Error, s<» ii... .... ....,......,.i ^jj^riirs to rest
upon desuetude corroborated hy that rej>ro-
traition.
*• The Asjiize/' ms M^Kenzie (Criminals
part 2, tit. «3, fee 5,) ** is either an ordinary,
or ^eat aasize. The g^reat assize is thdt
^thereby an ordinary is tried, if they do wrorij*",
Mid I Itiid aocne foundation for tbir terms*
• par la cuslume de LaDg^uinais, act 4, et deia
• llochaJ, art. 1, la grand Assise est dtisenpshal,
* la petit du juge prevestal/ An «irdinary
•4eii*e wfe» lo consist of tiAeen pei'snns, but
tbev ntivr cooaist of more, or fewer, if the
ntinil>er fie unequal; and thus, the penult of
Juiiij 101 4, Ronald was Irird, and CHntict for
«]iim]cmbenng' Donaldson, by an hs^'itl*^ of thir-
leen peraons. The reniion why the assize
tnust be imc«|ua1 in number, is, lest by equality
of voles, affairs be not terminated and broug-ht
to a sjieedy issue : for which cause likewise,
lib. 2. iiig. Maj. cap. 5, and by the 87th act
a p*rL king James l» it b appointed, * That
* iiHfiter» flibouid be apjjointed in an unequal
^ iinmber,* and yet I lind, that in the civil
brieve of ri;fhl, an assize should consist of
twelve sworn men.*' It is observaWe, that
II J' ' »ys^ *♦ As the defender may «lee!ine
*h* be any reason tbr it, so they are
«i/vuuj , jiur Hi it presumable, that any will be
«o improuK to eondetnn a man to ilie, ht plc*a.se
oth. ,^ M. <ii> %. h.^ I. 'n^sumptton our law \l\\u%
•o I i*^i£i*st fHifidenm un*
JUM A^ to tto A»^izt' ol\Ermr,
I n tt»id» (iee^ * A Guide to juries
iM*ttiu^ iVniii their antiquity power and duty
from f^^ rnmmon l^nw nnd St^tut^'x/ pub-
lic I ^ ^, and ibt' - -r cit4*-d*)
thu >ii ubvfh 1 lies not
in ^Jf^O ^i^^ ^ Iklseter-
di< i J at the conviei^H iruilt
litter Toiinti riMiu Willi at leusi
jurors (viz. wrtb the Iwehe of lb-
iind with at the fewest twelve ui ii>t j^r^uu
inqu«at) but ai Ua^\kiQi tays (Pl«ai of the
1681. [79
^l^Qubanie, of Scorieholme, WHlimm Park*
fowar, of Lairiml, John llutehteson^ of Har
lawe, Luke Grciusheills, of Uugfscaatle,
othei*s, nottoriouslie and manih^tlie guilty
Crown, Book 1, chapter 72, seci. 5)» ♦' it
to be certain, that po one ii liable to aoy p(
cution whatsoever, iu respect of any ^^crdii
(pren by him iu a criminoi matter, either U(h>i|i
a grand or petit jnry. For since the safety of^
the innocent, and punti>hment of the guilty^
doth so much depend upon tbe fair and upright
proceeding: of jurors, it is of the utmost eotise*
quenci'i (hat I bey should be as little as possibly
under I he icBuence of any passion whatsoever*
And therefore, U^t ihey e'lmuld be bia^^ed witll
I he f i ; V ^sed by a v isjtatious su itt
for Ji J to their conscience, (th€
danger ui ^vduu imght easily be insinuatedi
w hrre poirerful men are warmly enj^Mj^^ed ifi
a c:msc, thoroughly prepossessed of the Justice
of the side which they esrouse) the law will
not leave any possibifity for a prosecution of
this kind.
^^ It IS true indeed, the jurors were for^nerl^f
somvtiuH's cjueslioned in the Htur-rh amber, for
their pailiahly in dnding a manifest oHcndof
not guilty i kut this was always thoiighi a
very j^eat grievance ; and surely aj the law is
iiovv itctlled by Bnshers case, there is no kind
of proceeding ag^aiti&t jurors in respect of their
verdicts in criminal matters allowed of at thf#
day. As to the objection, that an attaint lie*.
against a jury lor a latse verdict *' iu a civil
*■ cause,* and that there is as much reason to
allow of it in a crimii»al one, it may be an-
swered, that in an aUaint, a man's properly it
only bn»u>jVil into question a second time, and
not [its liberty or life ; and also it may be ge-
neruUy presumed, that a jury is likely to bet
equally inliuenced with the tear of an attaint
from either of the conteinhng parties, whereas
if any ^ch examinations ot their proceedinga
were allowed iu criminal causes they might lid
often in ^reat danger of one sidci by incurring
the resentment ol a powerful prosecutor, and
provoking liim to call tlieir conduct mtoques*
tion fur their sup|K)ied partiality ; but they
could have iittle to fear from an injured crimi«
nal who \vould seldom be in ciroumstaoccs to
niike his protiecution formidable.'*
8o, too, ftlr. Barrin^^ton (t>b«. on Westntiu-
ster the Ist,) ^ays, ** It is to be observed, thai
attaint lay only in civil cases, either by th«
cujiiinoii f»w or by this statute. The rea^u
of which seems to have been grounded ii\*on
the strong presninptioh. rliai no jury wouUi
londetnn H eriuiuial <> tbe evidence*
and that it would be < a wiih princi*
pics of liberty* to pcijuit ili.* trn'vri, when il
might intend oppresjijon, to cs^H *n 'pitfiion*
verdict ofncqmUid. liifi foril' >mo»
when a crime ih prosocutcd by ■' ' re*
rwon, and mu in indict*
I uf the crown, thj»t thera
I', ir* tiK-^ritwuvii u? u grand jury t* find Ut«
biU/'
79] 33 CHARLES If. Proceedingi against Aiex. BMr and othrs, [80
the cry mea of high treason and rebellion, and wer dcfate at Dutliwel -bridi^, as the said
who wherindytea and accused for ryseing and i dittay produced be his niajestie's Advocatas per-
joyning-in amies with the blood ie and sacra- j sewer therof, against the tbrsaids|>erson8abo?e
Jegious murderers of tlie late archliishop of St. [ Daiiicd, indyted, and accused judiciallio,therbyy
Andrews, under the command of Robert Ham- i of the crymes forsaids therin contained, in
iltoun, brottier to the laird of Prestoune, and \ presence of the lords of justiciary i^ittand in
most treasonablie burning his m:ncstie*8 lawes ' judgement, in itself at length nroiiorts ; «f\er
and acts of ]>arliament, at the mafcat croce of! reading of the whilk dittiiy, the lords justice
Rutlierc^Ien, upon the 29th day of May, 1679, ! clerk and commissionera of justiciary being
procUiiming and publishing acts of ther owne j ryplie, and at lenth adwised thcrwith, ifiind the
coy ning, drowning oat bonefyre8,sett on in com- samen relevant, and remitteil the same to the
memoratiou of his majestie's hap^iie restaura- knowledge of the persons above named as ane
tion to the royall gOTernmrntof thiskin^dome, assyse thereto, etler pronuucing of the whilk
and for assaulting a |)artie of his majestic*8 intcrloquitor, the saids Alexander Blair, Lewes
forces at Loudounhill, under the command of Jolinstoun,and the other persons above named.
the laird of Claverhouse, upon the day
of June, thereller, killing and Inurdering seve-
ralls of them, and marching to the tonn of
Gkisgowc, upon the day of the same
moneth, :ind assauhing and attactqing a partie
of his majestie's forces therin, under the com-
mand of the lord Hosse and laird of Claver-
house, and for marching up and down the
countrey tlirowe the shyrcs of Lancrk, Aire,
ilcnfrewe, Dunbartonn, and others, in warlike
and military poustcr, with ther accomplices, to
tlie number of ten or twelve tliousaud, robbing
and pilagcing his majestie's gotnl subjects,
quartering uiK>n and oppressing them, printing
and publishing declarations and proclamations,
bearuig the treasonal>le grounds of ther rebel-
lion, modelling and furmeiug themselves into
troups, companys, and regiments, nameingand
appoynting commanders and officers over them,
healing parlies bo drums, sending commis-
sioners to the general! of his majestie's forces,
requyreing the subvention of the government
of the church, and continuoing in ther said
desperat and avowed rebellion till the 122nd
day oi'thc said moneth of Jime, 1679, that they
8eo, also, sir Thomas Smith's Commonwealth
of Englaiid, book 3, eliap. y, • What remedie
is, if sentence bee thought unjustly given.' By
a passage in Wodrow there is reason to think
that Charles the Second designed to publish this
trial together with some othi-rs ; but whether
such publication was ever made I know not.
Tlie nassage is as follows :
" In March this year, a letter comes down
from the king to the council, and one of the
sameiniprt to the lonis of justiciary, ordering
extraets to he made out of the registers, of the
trials of such as were condemned for rebellion.
The letter will best speak for itself.
'* C. R,
" Right trusty, Sec, Wherefts we have
thought fit to appoint extracts to be made out
of the books of adjournal of our justice- court,
of the trials of some of the most notorious reliels,
as also of the trial of John Niven, and those
persons found guilty by a great Assize of
Error, and likewise'of all papers whatsomever
relating to the trial of Archibald late carl of
Argyle, and the process of forfeiture led against
Uie end the sanoe may be digested and
being called upon, receaved, sworne and ad«
uiitted upon the assyse of the fierscns abure
named fbrtr^all ofther guiltiness oti he crymes
above specitit, his majesty's adiocat for ve-
rification and clearing to mem of the forsaids
persons ther guiltiness, adduced the witnessce
efter named, viz. againest the said William
Dick, (Javin Mont, in Lanerk, wbode|)ons that
he sawc the said William Dick in Lanerk with
therebells in armes, in or about Glasgowe,
betwixt the first and twentie second days of
June, 1679, an<l that he knew him particularliey
as also ^Irchibald llinselwood, in Lanerk, who
depons, that he sawe the said William D^
ryding aut of the totm of Lancrk, with annes,
tde tymethe rehelis wer in armes in the West,
and likeways William Heaste, in Lanerk, who
depons, that he sawe the said William Dick on
horseback with a sword al>out him ryding with
the rebells, and James Whytt, in Lanerk, who
depons he sawe the said William Dick, in
armes, in his returnefrom Both well -bridge, the
day the rebells wer defate ther, and for provmg
the saids Jume^ Park's guiltiness, adduced the
said Gavin Mont, who de|ion8 he sawe the said
methodized by Charles Hanses of Gray's Inn,
esq. and publlbhed tor the satisfaction of oar
good tiuhjeets : we have hereby thought fit, lo '
authorize and ref|uire you to transmit to oar
secretary of state, to be delivered to the said
Charles true and exact copies of all proclaroa*
tions, letters, examinaiions, confessions, trials^
indictments, declarations, and others, since tbm
decrease ot our royal "randlather kin<r James 6,
of blessed memory , thai relate to public matters,
our prerogative, the former and lale rebellions,
the rebels thiir suppressiim or c4iption, the
security of the pea(% HliKher in church or
state, or the ad ancement ot the interest of our
bishops and their ri>gular cler^^y in that our
ancient kingdom, and of all ititornntions, rela-
tions, or petitions, sent to our |>i ivy councfl
fnMU time to time, about any thing of this
nature, as convrnticli*s, insurret^titius, ins«>len-
cies, or cruelties of faiiaticks, and such other
pa{H.Tsof any public concern, uliich youjudgv
most proper to Ih* luiMishcd, for the satisffac-
tion of all good suhjtrcts ; which are to he al«
tested under the hand of our chancellor. Gireq^
at Whitehall, February 21, &c.
(< MlDDIXTOX.**
>r jQoe, 1679, and
\ SHiilIer, in fla-
|« twcuUfi sccoii.l
ibe touu ot li.iiiiii :ii
Druincluge auil tI ;e,
*n<) ".".-♦ •1..^ ,...;,.^, /. Wipi. ♦of
£4 'iie'a ailvocale ai!diKiti
Juij 1 n .iiiilioim, ^vho^^e-
Uuns^ ii p , of Scorie*
pime, n , at Uamil-
|M1 nntl lliifuikuun^mtur, betwixt Iho iirMt
P mrenh' tfffmd <1nyt ? nf June, 107 9, aut!
that he ' >e with tbian
amt \V il .'^TT, ^*-bA fit*.
pcmii, th4t hi: SilWu tiiu-
m anncii wttli the ril
JtiiiCf lo70, *uid Ihe «iiiii Jmij* v^iumiM^
fiko iif7t*ou9, llial he «a^« the lOid Jamr^
VOL. XL
Jftmct Park, in Lunerk, in ftrmes with the re-
belht betwiKt ihc (irijtnad tn«rilic sen>niltlaye3
«f Juiuv 16?y, AiiiJ that lie kuc^ve hitn (mrlJ*
Cttbrly, and thr ^iil WiHiAin Hea&tic, who
fiepotist he sawe ihc aaid James Fork with the
rcU'JU in af t ' , 1679* ^vithin
the louii of ' ;ivH \Vil|ia»ri
Wauteito , >t.:ij u«-i>onjB, Uiat he
Siiwe tK l^ark in company with
HP
the :■ 1 J'^.:. .:■ ; ;... . ,, ,..,,. _ .■_,.._.
adtlncoci the said Guvin Mont^ vihodepons he
iMwe the «atd John Biuicte, in Hrmes with the
v^betlSi htftHixl the tirsi and IntTilie wcotid
d»y*«*»* *^""^7 1fi79, and thrtt he JcDev*chim
pni • 'ie, who
dc[ ickle, m
•rnit's ^Hlii Ibc rthclii* njilno [he touii of L«i-
nerk, id Juiic^ 1679, and Ukewnys the said
iirchibiild Hins^i-lwood, who depmis tlmt be
Wkvrc the snid John Hun':klc ];;oiiig fruui (he
t<Hr- ' ' ' ^viih arnuSi the t}itie forsuidf
All ,4l Thomas 11 iuseiuood^ ad-
duce,. ,;._ ...... V, jlliam iioastie» who dqKKifi,
lie sttwethe snid 'l'lto»0*is HiuseUvodif, in armew
With thi^ r^ltt'lliif within thetouiiof Lniirrk, in
June 1679, and the mid Giivin j\Ioiit, who de-
^ii:i, thai he sawc the kaid ThoniJis Hin!fcl<
I ill arm*:» w iih the rcMK and knewe hint
iicnlarlti^ ; atid al^o Kobeit ]VI*ttbie, in
ocrk, who de]>ons, he gawe the 5aid Tho-
mt^s IijiiSL7iwo<Ki \ro^f uloiigst With the rehoUs
wad a biatf iu his baiidf and likewa^esjohn
Lindsay, «lioc;- maker in Laoetki who dep^jns
he jawe the Kaid Thomas Hiuselwoiid in eoni-
j>ttny wiili the rebi'Us, with a swoi'd, and
ligaincst the said Hugfh JSon»in*rTille of Uiir-
rata, his inajesiie's advoealk* addurfnl Jaiiiea
TikI in liamiUtKiii, wh" .1. i^.n^ that he sawe
the sfiid llug^li Sotum ah tymas in
arini-!* with tlir il- hells Ir : 6rstof June
and the twentie seeond day thereof the forsaid
car, and that he knewe bioi iiarticutarhe, and
cr Cleitandj in Laneik, who depous, he
p the naid thi^h ^HmuTvail), cf Urrats, in
(e* with ilie lebtlla, at L4ii\erk, Hamiltoun,
llamiltouii-miiir, b<?twixt the first and
A. D. 168I
rss
M*(iiiharneT in armei, wiUt the rebels, withfn
thelonii of Harnihoun* hctwjxt the f 1}
Di'wiiK-loife, and the defate at Coth\^
ajid a;,'^»ine!it >Vilhain Pirk, fewer, ci ljiialad,i
hin miu^*$tie's advoout adituceil Johu AHaTi, itfJ
I* M), wUo ^iepont?** he s:»wo Williiim!
' I, of Lairfiid, in ni"me« with tlie re-
lrMi>, V. iiiiin the Laun of Ilamiitotvn, Uol^i'Cij
8cot, if) nuniiltoun« who depons he bAwc the
^!'''' Udliam Park, severall tymts lu t-i)jii«-J
with the rt^belfa, at tlie dqH>UL!)t'tf|
A\ betwixt the first of June and tin
twentie-secoud day thenHtf, ami Johti lUhA
hertson, in Earnocb, %*ha dtpoik* he saw t* tlt^S
said VViltiiiut Park, fcwnr, ofLairfad, in urine»1
with the rcbella, in llamtUoun-Muir, in June*i
1679, and ae^ineit John llulchiesoni <»t Hare- 1
Inwe, adduced James TmJ, in llarnihotin, wbcil
depons he sawe the i^aid John lliitchrtfsou se«f
vcrall tvnies in ajuies with the rebel Is. at Ila»l
in Lan* (U, who dt^pori^ he nawe thi< Ftiid John]
Hutehie&'on, in anncs with the rrhedjt^ i^i
Joiu\ 1670, the tyiTve of the late rebellion, audi
Archihdld liin^^lwQod, in Lanark* whaj
depoDS he suwe the wud John HutcliieiioAl
ryditig with amies from the west home- J
wurde, the tyme th<p rebells wcr in nrmesj
and against ih^ «aid Lnke Greinshdtis, htl*
mjijrstie'fi advocat, adduced the said CafiU
Mount, in Lam^rk, who depon*; he sawe hltu Iff
armcs with the rebelU^ and kuevie hint parti- j
cularlie; and Andrew Uobertson, in BHshiir^^
who depons be sawe the said Lnkc Gretnsbeill^l
in armes, with two tronpa ol* the nbtUsj a4J
the Hhawfdieadmttir, on Sundny befor the bieak
at Botbwel-bridg^e; The w bilk wifnesses abovi
named, wer receavcd, sv^n " ^I'lrfr^d and ad-
mitted, in prc!>cnce of th< i^uw com- 1
pleaned upon, as?<y!iers rec- _ ■} sworue ial
the said cause for Iryali of the persons above |
named, thtr guiltiia&b of the rryme.s alor*
Bpecifit, wlijcli was moat clear and manifestpj
ther bcMng" not only one but three and four wit*
uesses deponeing pogitive therU|M}n, in respect |
wberof his majestie** nilvocate then protected ]
for wilful I error, atrainest them in case they
should acquytt or cleuf^ the dttfenders abf}v«
1 d of I he crymes I ^ ' ' r
\' ; yet true it i
;in(iiie named lieinc" * ' juuvrti mhih of j
eourt, end inclosi-d iii«sy4ie-hoHNej
and ha%i»ir '-'"•''* 'v-' »"-"> *^"Pi
poyntsof tl •
ther know 11,. ....
tered at^'atne m court 4: of j
the eleiir vcrificalion i i>er-» j
j»on» alMive mimed« llier jj^udht ntfeof the cry met 1
nlwve tipecitH*, led and adilnrrd in thrr pre*
s^nce, be the mouth and jr T
the ««:^id Ji»m<*^ Baird, ^d
U'd and ehoibcn bt' tlitui, ii; vii
, wilfuU be favour, paitiahtie, '
i lull ii)eaiieft,ii8lolvied tho
kmu l^k, fttid the oth«t
33 CHARLES II. ProctedmgB again$t Alex. JB/tftr and others, [S%
Robert Sandilands, merchant.
Robert Eliot Wright.
Alexander Henruson, of Newba?eD.
Jamet Graiff of WariestouD.
John Dundatj of Harriestouo.
Indyted and accased for the crime of wilfid
error ut in die preccdente.
James Buird^ of Sauchtounhall, who waft
chancellor to the said assyae, declaires, tbal
ther came but aboni sex paonalls to his rote,
and he fand them guilty according to his know-
ledge.
His Majettie's Adoocaie dedaires, he in
83]
persons abore named, though they wer bound
in lawc, b^ oath, and conscience, to have judg-
ed according to the depositions of the witnesses
and probation adduced be his roajestie's advo-
cat, receaved, sirome and admitted in ther
owne presence, which is a most clear, manifest
and convincing probation of the persons above
named, and ilk ane of them tber guiltines oi
the crymes above specitit. In doemg wberof,
the persons above complained npon, have most
wickedKe committed and incuTRd motft wilful,
manifest, partiall, perjorioos, at least temera-
rious error, nyn several! tymes againest the
light of thee own oonsidences, and against the
most clear prot>ation that ever was or cane be
adduced in any caose, civill or crimmall, in
hye contempt of his majestic, and his autho-
ritie, the wliilk being suae found be ane assyse,
^ey and ilk ane of them ought to be punished
■IB tber persons and goods, with the paines
-above wnniten, which ought to be inflicted
upon them in most examplarie maner to the
terror of others, to commit the l^e herefler.
Pencwcr.— Sir George M'Kenzie,* of Rose-
haugh, our Soi'ereigne Lord's Advocat.
Procuratort in Defence, — Sir George Lock-
^art, sir John Cunningham.
The lords in regard ther was not a compe-
tent number of assy sen present, continued the
dyettill Monday next, and ordaines the pau-
nulls to find caution for their appsirance at
that dyet, and the assysers present wer cited,
apud acta to attend ilk persoQ| under the paine
of two liundreth merks.
CuRif Justiciars, S. D. N. Regis tenta in
Pnetorio Burgi de Edinbuigh, 25 die
uiensis Julii, 1681, per honorabiles viros
Kitohardum l^Iidtlaud deDuddop Justi-
ciar] urn Clericum, Dominos Jacolium
Foulis dc Colintonn, Davidem Balfour de
Forret, Davidem Fdconer de Newtoun, et
Rogerum Hoge de Ilarcarssy Commis-
fiionarios Justiciarice dictii S. D. N. U(^.
Curia legitime affirmata.
Intranf
Alexander Blair, merchant.
Leu-cs Johnstoun, merchant*
Thomas Noble, ino'chant.
Captain John Binning,'
Alexander Bothwell,o£Gkncom^
James Bailifie, merchant.
Mr. Andrew Temple, of Ravilrige.
James Baird, of Saucbtounhall.
* lu sir G. N«Kenzie's treatise on the Cri-
minal Law of Scotland, upon several occAnions
assizere are mentioned, slightingly, if not con-
teropUiousJy ; and the same work exhibits a
atrong bias in the mind of the author, in ta-
Tour of the authority and power of judges,
rather tlian those of assysers. Of his treat-
Aent of the latter, see two mstanoes in this
CoUwIioUi vol. 8, 8«3| Tol. 10» p. 9T1« and 986.
primo loco, affainst Alexander Blair, AleaKander
Bothwel, John Binning, James Bailtie, Mr.
Andrew Temple, and John Ihindas, of fiar^
viestoun, and James Gray, of Wariestoun.
Sir Ge&rge Lockhart, for the pannalls aU
leadges, that they cannot he put to the know^
ledge of ane assyse becaoao the process itidf
being a prooess of error, and that the pamalli
were * temere jurantes super assisam,' as it »
extraordinar and vrithont any precedent npoa
record, so it is only foundit upon the 63 act, 6
iMurliaiuent king James S, and theifo canm*
be farder sustained then in the precise termci
and cases mentioned in that act of parliament (
and the expresse case stated in that act b
only wher mdyted persons are showen befhr
the assyse in the accusation of a trespassor
nottoraiid manifestknowledge of the trespassor
being bade it happins the persons that passe tm
the assyse wiUnUie be favours or partial meanek
to acqu^tt, that such assysers neing convMA
de temerario juroj/iento may be persewed as
guilty of error, but that act of parliament doe9
not in the lest conseriie the case of these paa^
nails ; in respect it cannot be subsumed thai
the persons iudyted wer showen and prodooed
to them, the pannals then called befor the fi^
syse not being sisted, but the prooedor ody
against them as absents which albeit warrand*
ed by the late act of parliament, in suae fart
as concerns the legalitie of that procedor ••
to any sentence, cooderoniiigthem, orfcr&ul*
ture, or contiscation of ther estates, yet doea H
not at all concerne the case of the act of par*
liament king James 3, which m tlie clear aisj
distinct woras therof, proceeds and reqnyre$
that the persons indytca should be shpiren and
prodnceif, and by the common principles of
law in materia criminale, ther cane be no ex«
tention of lawcsand acts of parliament ' de casa
* iu casum etiam ex paritate et identitate ra-
* tiouis,' although ther is no paritie or identitip
in the case wher pannalls are absent, and wher
they are present ; in respect wher pannalls ar»
present, assizers have oportunitysof mora&U^
more evident, and convincing convictions, by
the cariage, answers and composure, and inte-
rogations, which in ther own presence thew
may hear made, or may make, to the pannalls
themselves, and therfor this case being of so
high and extraordinary importance as to the
lives and fortouns of his miyestie^s
and whcmpon all assyzen may be
«6]
ijpcw « Pr4fC€99 of Errc^
A«D. V6tf]*
[86
question by great nmyvie%, ftnd these great
assyses dra^ven in qu<?slion agAitie beioiT a
imrtinnierit; llji* prucoe uf crmr not be\u\r in
ibe leifues of the act of |mrliainc:ut kin^'' Jiuucs
3, wbtuujHiu it Ls foumJit, cannot be susuitiieiJ,
or the pannnls put to the kaovvletlge of uiie
Bsty%c tlierujH)!!.
2, Although the c«se wer in lite exprcsse
femics of the act of parliament, tiiat the pa«-
nails hado bein sisted luid produced, the con*
frair wherof ia ooitor arid known to tlie lordis of
jtisticiarie^ ^el no pcTbon cau bo fH'rse^red as
guilik of perjurie, and couimitting^ wilfull
error, ei^cept wlisr the? are relevant aitd special!
quali^cali4m8 cofidesceaded upon and offered
lo be proren, that the assy sera did assolyic the
trespassors be favour or partial itie, and the
reaaoD t» most evident, because the assysc bein^
hj the lawcs and inviolable practice of this
fijnmlom, the sole and absolute judges of the
|ifoQation according as they shall he convinced
tberaf, iQ ther conscieooes, and who in the ua*
tufe of their office and duty^ ha%e it in Lher
?ower to con«$ider *■ momcutuni probationes
<}liantum iidei e^it te^tibus adhibenduin,' it is
noway es sufficient to persewe ane assjse ' super
* hoc aolo medio,' thai tber was a probation
adduced, hui it most be made appt ir that the
ijisyse hade no re^aird to the liaid }>rohation
II Don other extrinsic grounds and consideration
Of parltaliUe and favour, such as brybrie, cor-
ruption «nd other qualitlcatioiiK of that kind,
but if no iiuch favour^ qualifications or g'vatili*
CAtiouscane be coodescendit on and quahlitil^ so
as iLe assyse have proceefht upon the sinjjjle
ric for principles paasen for a christian duty and
h«*roic devotion, holU in this and our n«;i^hboiir
nati^m, uhichas it mnkestliedebateinir idiliese
two [• I ' ' . unnccc4J>ary, t^ \
mall' » clear* yet foi .
sako, Ins iiuijout-h dtlvocat answers:
Tothetin$t the act is op poned, i I
who arc guilty '^' ' " - -ojuramcui.'^.^.t.^i.i^i
distinclion) tol • 1^ vihich if it should
hohl inanyca-.-, il much morr hold In
treason, and against persons who ar v
as tbe\ dare not appcir, and ihojn y
consider what wise men our lawyers had ijcm,
if they hade punished these who hade a.vsolytd
a man for petiie theitt, or mutilation, and yet
would liave allowed inipunltie to oppiu Rbclls
{►erststing iu retwHiou, nor does tlie words
bundit upon in the act of purliament any \^ay
weaken tiie tybell (those words shoucn to ibo
aasyse) meaning only that wher pcnKHJS arc
designed and spccJfieil to the assyse in a ly bcIT,
and not vi tier tlie iKMlies lov pruducetl, for 1 may
show e a man to be a rebeU, and ^et not showe
hm persOD to be at the hare, and it is verie
eftraing to thiidc that rcbells either to he foHUult
in absence or efter death, or if the la we should
yel otxlatne other })erson8 to be forlault m ab-
sence (as probahlie they sbortUe will) ther being
greater piohabiliiie of assoiyeing these be par-
liahtie then any others, because of the identitie
of priuciplesi law should not have protidcd a
remetly wtier ther was greatest temptatiou and
hazard,
'id. The act of parliament ordaining persont
to be forfjulied in absencei appoyuts the pro-
oonviction of ther onn reason and consciences, i bntioti to be led againiit them as if they wer
no such procedor cane fall under the act of •■-^—•^ '—» *u««*\.- .i.,.„:-, ..„ ,u. *:.,.>#.«.* *^ k«.
]»arharoent to ibund against thein ane process
of error, and that lliey are * temcre juraute«
* fuper oMisam/
Hts Mmeniics Advocate replies lo the firii,
That the law having forsein the great arbie-
trariencs and villainies that might be com-
mitted by cleogiojf persons guilty, wherby
not only tlieprmcipUs of govcrnnieut but of
human socictie would be disoKcd, in re*(i/ecl
that the grt^a-test malefactors might exfieot
iuipunitie, r.htrcby not only government but all
focuritie wouhl be cast louse, and every privut
omn luive power to reuiitt and indVinaific
crymes, though never so great and horrid,
they therfor made this excellent and clear law
which tloes very deartie ordaine all ' tern ere
*yuraiit«s super assisaDi^ to be puuisbed with-
out distinction, and which act could never be
put in execution in a case of greater moment
then is the aK*olyeing of nyn oppin and nolto-
rious traitors, who hade ubsolutehe disowned
tJhe king, declaircd him a tyrrau, and burnt
&ts lawes, nor in a case so clcarlie proven, the
pro^tJan being an to all the tiyn, most clear atid
ooovbceifig, and the pari i«*>< a^^nylieil haviug
not only b^m titer to the kuov^ledl^e of wholl
^rrei and oountrcys, and who durst not com-
ir wheo cited but arc vei rvding in nartics
^bnatming nnd murderuig tue king's uoncstt
■id Uf »il 8iil{|icla, nor in a tytne wlmrio perjo-
pi t*btnt, and therfor U»er is no distinction to be
made but Jhliant jurin^ the lawe makes lliem
to be present, nor does the reason of difference
condt^cendit on militat any waves in this casc^
for tile assyse are not to consider what might
have beiu said if they hade bein present, but
are to proceed * secundum allegata it probata/
aud theHbrif the probation l>eiug incontraverted
(as iu ibis case it was) they should have eou*
demnetl, aud if the pannalls hade any thing to
%^y for tliemselves sibi imputent^ that did not
com pet r l>ei}ig citexl, and they may htfve a re*
medie if they Uiereller compeir and ofler them-
selves to a tryall.
To the second the act of parliament lyi
opponed bearing that persons assolycj ug nilif]
JMstlie are to be accused, not only of per- '
verse and partiall assolycing, but ot * temere
' jurantes super aasisam/ aud the taw could
not distinguish whither men did by par-
tialitie or wiifulnoss assolyie, or if they as-
solyied only rashlie by error for utalice and dof |
signe, being latent acts of the miud, the Iaw0n
could not know them but by tlie etiect, for aue
assyser may be of those peruitious princijde$
that thinks Bothwelbridge was no rebellion;
and yet no iu:in knevve it but God Almighty^
and tliertbre the law has tixed upon most cleac
grounds which is to know the cauae by the elW*
iect, nor cane ther be any other pt'
fiilneft and partialttie ii' it w«r to be <;f i
U
87.1
33 CHARLES II. Proceedings against AU». Biair and others, [8S
on and proven, then that efter a clear and con-
▼inceing probation was led of the guilt they as-
solyied, and this is the same probation tliat
could 1)0 led of 130 witnesses wer led, for in the
c(»nstruction of lawe, he does wilfullie assolyie
"Who assulyics contrair to probation, that the
)awe allowes, and the probation of two or three
witnesses in a palpable matter that falls under
sense, such as I>eingin amies with the retells,
is as coRvinceinjr a ]>rubation as if 150 did de-
pone, and if this condescension wer requisit,
this law wouifl be absolutlie overturned, elludit
and made useless, since it will be impossible
for the king to prove partialitie and wilfulnes
otherwayes then ex re ipsa, so that this inter-
pretation being inconsistent witli the designc of
the luwe, and the securitie of the common
w&hh, this sense cannot at all be sustained or
fastened upon it, for that wer not to interpret a
lawe, but to abrogat it.
Sir John Cunningfiame duplyes, Tliat the
punishment which is to he irrogat in case the
pannalU be found guilty, l>eiug no lesse then
viz. 1604 and 1635, which took no eflect, nor
was the assyse put to ane assyse.
2d. The act of parliament 1669, which flip-
poynted probation to be adduced in presedca
of ane assyse in absence of a traitor, in crymetf
of treason, cannot be extendit to comprehend
the case of ane assyse of error, for as thtf
cr}'me of error is altogitlier contradistinct from
the crimes mentioned in that act of parliament,'
which was the only subject of the parliament's
consideration at that time, so no law cane im-
port the punishment of error ; but tbe act
foundit upon in the pro|>osition mider which
the pancalls fall not as aforsaid, nor in so great
and important cases to the loidges whichSawa
equiparats to ther lyff, must con5e(|nentialI in-
ferences and illations from posterior lawes be a
ground to irrogat so hye punishments, eape-
ciallie wher the disparities are so urgent antf
pi-egnant as are adduced in the defence.
3. That notwithstanding of his maje8tie'»
advocate's allegeance, the lybell ought to bear
and should bcqualitied upon parualitie and fk-
infaniic, that thcv shoultV have no ri;;[||t to stand I vcur, is evinced first from the expi'csse
injuJgijiiicnt,
and this being so great a
i;
tfie tinsell of tlier*^ estaies, Sec
conceriic of tho
leidges, they <»u|L,ht not to pass to the know-
ledge of an assyse in order hcrciO, but upon
a clear, positive, and express law, and f-n* a
crime subsnmed upon in the tonnes of lawe, anrl
thcrforc seeing i' cannot he contiavertcd that
the pui1ic-s clenged wer not showcn nor pro-
duced ber<»re the assyse, the assystrs who lie
pluialitie clenged, cnnnot upon that act be
[)f;]*scwfd for error, and as to the replye made
l)e his :n:ijcstie's advocat, that these word.s in
the act ol p;irliament, viz. the indyted person
pliov.j.'n and prodisced, imports notding else but
that tlie ]»rrson he spociallie designed, the act
of p;nTianit*iit is opponed, uhich requyrcs the
showcing oltlie ind\tcd person, and it is most
ccrlaiiic, and cannot he contravcrted, thnt the
act re«jU3TiKl the production of the person on
the pannall, because befor the late act of par-
liament, never person past to the knowledge of
ane inijucist but wher he was present on the
paimall, and as those are the expresse words
and clt ar import of the act of parliament, so
in ord'T to the clearing of ane assyse, tln-r is
ant* al>so!ut \ast diH'ercnce betwixt ane assyse
clenging or convicting parte audita et present c
et pii! ft inaudif/i, w her the conscience of the
assize i^ to be convinced of the pannall's ac-
cession to the guilt, or iVeedome from the
guih by the moment of a probation, against
which a pannall may object, or by the
riionicnt of the pannal's delcnce or excnlpa-
ti»>p, o;-f| r..it\vithstautling of this act of par-
liainciil. r.iil tliat now in the space of 200
\cars since the niakcinLT thereof, ther could
Ii4»t ln:t^l:ave oecurred cases uiierrin ther was
much more cn'1'.Miee and elearne* to indvt ane
assNsc of error then in this Cf se, ytl his ma-
jesfie's adxtuat cannot make appeir by the
Journnlls of Justiciary, that ever ane assyse
was convict of eri-or, and so fare as is knowen
iMVAF aiie anyse accuaed of error but t^vicc,
oftheactof parliament; S2dlie, from the na-'
tore of a verdict wherein assyf^ers proceed upon
tlie motion and conviction of ther own con-
sciences upon ihu poynt of probation ; Sdlie,
from the qualitie of *|»ersons who passes upoa
the assyse, whom not only the law of the kin^
dome pVpsumes to be probi hoiuinei terra, but
being Jici-sons culled and uominat by his ma-
jestie's advocat, ther integritie and fidelitie
cannot be dmwen in ijuestion mearlie, becauie
of ther verdict, wherm they are supposed to'
have served ther consciences, being under thai
Magnum sucramcntum which assy sere give
when th oy are choisen, and the tords of justi-
ciary would be pleased to consider ho we im-
portant ane case this may prove wher ther is
so frequent use for assyners, that if tbe assyser
serve his conscience and elenge, he most then
rune the hazard of ane great assyse, and yet
serve his conscience he most in regainl of nia
oath, and his convixtion, and it is uiion thia
consideration that the lawe has expresslie re-
quyred partialitie and favour, because it is not
to be presumed that a man upon oath would
damne himself either to assolyie or condemne,
unless it could be made out by these qualifi-
cations of lordes or hr3 brie, or dounright la-
vour from kindnes to the partie, which cannot
be pretendit in this case, wherein non of tlie
parties insisted againcstdid so much asknowe
any of the parties cleoge<l, and the pretence
that it was done from a principle is a worse ac-
cusation then the dittay, and absolutlie unjust,
because those verie assysers concurred in the
cx>nvieting of eight and fourtie at the same
tyme.
Sir Gein-gc Lockhart adds, that it is most e?i-
dent by the act of Parliament, king James 3d,
and by the inviolable practiq', and records in
the books of adjournal, that the penrons of
the pannalb) ought to have bein sisted and pro*
du(;e«l, and it is a glosse aUogithcr incopsiatept
with the act itself, that these words the per^*
f
89]
upon a PracfMs of Er%*or*
»oii indjt^ ihmren to the aiisyfir) is to be iin-
*kn»t#HMl only of a de^ig:nation oi] the ^innunlK
be QAiiie anJf(iretiame,or the )).k«^anil ibe rcfi-
%on tsmo&t clear, for i^hiiber the paniialt tie
lircseot or abs4:nt, all criininall I)'b«llH| and
<:i^ill rctjuires »iuii ' hniis, aiul ihcdor
UiG ^howioLC tlic [ led Yvaaaststin^
and [irmhimn{rthe |m jvun, und vvliidi not only
IS rcfjllyrc^d by the suid act ot* Parlianu'ut, but
V/SKi uls<> retjuyrtnl by the couitnan law, uttd
^itj lawt* of all nations, utid the canlriirv
whcrof was nerer iiretendit or beard of till
the late a«*l of (jarliutnent \ni9* Aod as to
that ai^iiinent tb»l the late act of parliament
hoc i^wtbat it allo^res a procet^dor agaiue&t ab-
■enlij and d<*c1airts the sentence and d(M»m of
Inrtanllurr^ fulloweijtg' tberenpon valid, does
also iiiferrc that assysers, if they should as-
golyie tijcraiust a clear probation nnay be per-
«cwcd for error, it is aDswered, the argiimcDt
IH aoe absolute inconsequence, and on the eon*
trair the same is retorted, because his ma-
jeaiie and estates of parliament makein^ a
liiwc in mtitaid connexa and dcclairing: tlie
ipeciall eflViis of that prucedor, that it should
Ikt valid as to ilie sentence condemnin;^' and
the doom of forfaulture, and beiD|f let lurvcc^
taria oa to these poynts» it is impossible that a
lawe decfairin^, as to special! effects, and being;
both ft corrurlory lawe, and * in materil
' mitxime odiosa,* it cane l)e extend it t<i ai»y
other effect then these cxprest, and the com-
fnt>n rule of lawe takes place that '^ casus omis-
* stis habctur pro onitsso/ and the lords of ses-
ajou are iti usp so to interpret law* and arts of
{uirliainentt fVen * tn materiti civili/ wlier the
ane itst^lf allowps a ju^ and rationall exten-
sion * ex firesuniptfl nipnte lefjijilitoris/ ns tor
example in tho>;e sUlute*relatio|r lo r«»rnpr)se-
hng' fLiid aitjudiraltonHf bei^aime the stiitut as to
adjudications d^ies not InMr that sp«»eiall eflert,
thai lite udjudi;rr8houUI pay a cuuiposilion to
the anjienor, Ibe lord** iifMin the corirnton
grounds of lane, that statuts wcti* itrtctuntfn
jun$, and could not be cxtendit, thouyh iher
was the saire pari lie of reason^ yet ivould not
eic tend ibe : taint of ir'tmprymuijlti the case of
tidjudicfltion, unilll by the late act of ^»ar)ia*
nient, tiiat particular case was providit (or, but
it werane absnlul ovi-rttirniflg^ of the fundu-
lioo of .1' )lt h«es, that a posterior act
of parlt k ^ '*'«' torrrrlorirt, as to spe-
cinll ertV'i t> mrn )u mentioned, and proceeding
upon a siieciall narrative that it wtr unjust that
ptrsou^ by tlitr ub^fiice and contumacy sliould
reap any ad^aniutfe, nhirh narn*tive, tho it
lie verie just, a» lo tlie imntmlb themselves, who
did not compeir, yet dots'not in the least mi-
ll tat a^ifist the aM3'<(e, that such nne act of
parliniuent pmce«-dintf uj^m such speciall con-
dci'atinns, and only innovateing* the former
W.fare and cu»tome as to the speeiall tacts tberio
PwPntioned, should b)* ane interjiretation be ex-
JH»nH to lay ane fun da t ton of a proces of error
■guinst the ansyaef iv|\^n the pannatls wer
not pri*!5rnt, and by i*hose presence they iiiig-ht
ktve beiu cleared in ther cooicifQcefi, of roaoy
A. D^ldSl. [90 I
doubts and questions, whereof it was impossible j
ihey could lie cleared beinc" absent, and tho ihef .
wer any reason to extend ine wt of parliament J
ktn^ Jumea Sil, that it should proceed in tha ;
case of asi^ysers wher panoalls are absent, iti J
cane only be done by act of parliament, J
!?do, Assysers by'the lawe of the kingdomr^J
being' ab^olut judges of the probation^ as they]
may eondemne without any probatioo at all ]
up«m the single conviction of iher own con-
sciences, so • momenta probationmo sunt lit
*arl>itriojudici** •/ and to convince the Lords of
justiciar)', that ther is neither absunbtie nor
any unwarrantable streatch in this |K») nl, ther |
is not a more famous (question in tne canooit \
lawe» then whither * judex contra privatam ,
' couiirientiam teneatur sequi allegata ct pro-
* bata,^ whcrin there is great and euiinenl au* ^
thurltes upon all hands ; Hut the lawe of tbis^j
kin^dome has clearlie datemiined the case as to 1
assysers, that ihey are to proceed and deter- <
mine accordinjf to"^ the conviction of ther own
conscience, which most be presumed, nnle««#j
his majesties ndrocate wer able to qualitie tiitl |
instruct such fjualitications against them, m
would make it appear that they did not pro*
ceed upon conviction of ther consciences, buf
upon other unwarrantable and unjust ground!
which if they wer coDdescendit upon and
proveu, wer a clear grouod lo a great asayst I
to find that the foraier assyse were * temerd
*j«runtes super assl«am,'and it is stroins;^^ doc-
trio to think that ane assyse who ^enerallie ar€^
not lawyers but called as * probi et tideles ho-
*■ mines |tatrite;^ to jmiceed according to that
measure of li*rht and conviction, that God hai
endev^ed thern vvilh, and eiter tliey have taken
tlier great oath to proceed without unrtialitie
or favour^ that such ane a^^sy^se upon the sinj^tft
pretence that a prtd>ation does convince others,
which did not convince iliem in ther consci-
ence^, sboubl be a^j^uod for aue unsy se of en'or,
unlesse ipialticntions of brybrie and corrup-
tion, or aniCf Client pactions to aeipiyt parlies
whatever should be proven could be oualiOed,
and pr«iven a^^nist thetn ; And as to that pi^e-
teoce tliat if nucIi <jiialificati<»os wer requyred
the net ot parliami-nt would be elusorie, and
that It is not i^tM^siUe tor bis majesties advocat
to prove the same ;
It isansweieil, the pretence is most ifround-
les and irrelevant and i|s most mijiiMt and in-
cousequentidl» that lens e qualifieauotis »hould,J
be recpiyreil to convince ane assiysc off
trror, * et de temeran jmnmento^ then the
lawe re^piyres even in civil cslscs to re!»cind
sentances; attd yf t such f^uabtications of cor-
ruption, brybrie, and partialitje, are leqityreil to
l>e made appetr atraintit witneasesi in any re|»ro-
bator of titer testi monies, and without whichg
such repn»liaiors never was nor cane be sus-
tained, and therforanc htmdreih instancy caae
be g'iven that such quabfications bo^th have
ticcurred and bein proven, so ihaftKerja 00
reaKon lo pretend, but these both mi^hi and
ou^hi to l»e proven in the ease of a^vvsera^
and without wbiehj it is tmpoisible that in' Ian t^
33 CHARLES II. ProeeeitHgi againa Alex. Blair and taken, [9t
91J
or justice they cane be found goU^ of ac-
quyttinf^ paiinalls wilfullie, temeranoualie, or
by partialiiie and favour, wbicb are the expresse
tenues requy red by the act of parliament, kinff
James 3d, and if such a fundation war laicl,
there is no man, nay scarce lawyers of tlie
greatest reputation, could adventure to be
members ot assyses, notknoweing howefare
tliey may be chairged or overtaken. And
the lawe of the nation putts assysers upon
no such racks or difficulties but only tbafi
as honest and well meaning men they
should proceed according to the integrietie
of ther consciences to condemne and as-
tulyie^ and it is beyond doubt, and the bookes
of adjoumall make mention, as the persewer
protests tor error, so the pannalls may doe
tlie same, so unto what inextricable labyrinths
ahould assyers be involved in by such pro-
testations and hazards upon all hands that ther
estates and reputations may be drawen in ques-
tion as guilty of perjone upon that smgle
pretence, that they ought to have nroceedit
otherway s upon the probation adduced ; men's
reasons and apprehensions, being as different
•8 ther faces, and that which seems to be
clear and convincing to one being dubious and
debatalile as to another, and thcrfor the case
being so high and of such extraordinary im-
portance as to all men's securities, a pro-
cess of error cane be no farder sustained then
according to the act of parliament of king
James 3u, and even thougli the pannalls then
indytcd hade bein sisted and compeired, his
mqjcstie's advocat should prove and qualifie
bryhrie, coiTuption, and otlier grounds of gra-
tincation.
The lords justice clerk and commissioners of
josticiarie having oousidred'the lybcU and de-
Inte, they repell the defence and duplie in res-
pect of the 1 yhell and replye, and remits the
lybell to the knowlede of ane great assyse.
As&ISA.
TVilliam, Earle of Dalhousie.
Robert, £arle of Roxburgh,
C'oliii, Earle of Balcarras.
llie Earle of Airlie.
The Viscount of Oxfobrd.
The Lord f uviotirstoun.
John, Lord Elphiogstoun.
The Lord Elibank.
Andrew, Lord RoUo.
Capt. Alexander Livingstouo.
The Laird of Gostbord.
IMlt. Henry Maule.
Capt. M^Ceiizie, of Suddie.
Alexander Murray, of Melgum.
Sir Andrew Bruce, of EarlcshaU.
Mr. William Livingstoun, of Kibyth.
Sir Mark Carss, of Cockpen.
Sir John Why turd, of Mdntoun
John Skein, ot Halyairds.
Henry Trotter, of MortounhalK
Adam Urquliart, of Meldrum.
Ur. John Bayne, of Delneys,
Wiiliam Graham, of GurtiiiDioir.
Sir Wm. Binning, late provest of Edinboigh.
Capt. Andrew Dick.
The Assyse kwfullie swome, bo objeetioD w
the contrair.
His Majettiet Advocate^ for Probatioo, ad-
duced the Witnesses Deposition, led and ad-
duced be him againest the persons whom tho
pannalls have assolyied with their verdict ibl-
towiug therupon, as also the Pannalls Decla-
rations emmitted Jliefbre the lords of bb ma-
jestie's privie council, whereof the tenor ibi-
lowes:
Edinburgh, 16 June, 1681, in presence of Ina
miyestie's privie council*.
Jamet Gray, of WariestouD^ being examined
* If the verdkt had been taken with perfect
regularity, there would not have been oocasioD
to resort to any other proof of the votes, wbicb
had been given by each of the assizers. Thia
will appear from the following passages of Mr.
Hume's Commentaries, *< respecting Trial for
Crimes."
<' To pass to the last article of the doty of
the assize, the return of their verdict into oourt.
For this purpose an hour is appointed by or-
dinary style of the interlocutor ordaining then
to inclose ; though if they be still sitting wbea
that hour comes, the court may adjouni anew^
and appoint them another hour. In the or-
dinary case, the verdict can be received only
in the presence of the {lannall ; for, as men«
tioued formerly) if even at this period of tba
process he maxe his escape, or withdraw hia
appearance, no farther step can be taken in tha
trial, but sentence offugitation only be pro-
nounced, in like manner as if he never haa ap^
Scared at all. Like other rules, thb one may
owever be departed from in extraordinary cir-
cumstances, wnere, without injustice, or great
inconvenience, it could not be observed. JaaA
such a situation occnrred in the trial of Peter
Glasgow, and others, in October 1797, for rioC
It happened here, that Glasgow was taken ill
while the assize were inclosed, and beoauM'
unable to attend at the appointed hour for ra-
ceiving the verdict from their hands. Never-
theless, af others were under trial on the sama
indictment, it was held that these had a rigfat
to know their fate, and conid not on hb account
be subjected to farther anxiety or confinemcat.
The verdict was received therefore in absaooa '
of Glasgow, and he had sentence afterward^
in pursuance of hb conviction .
" It is equally true, that in the ordinary caai^
the verdict can be received in the preseaoa
only of all the persons of assize. And the ra»>
son is, that they may, in open court, hear ihm
verdict read out from the record, and dim
own and acknowledge it, as the very verdiol
which they have found, and have committad
to the keeping of their chancellor, to be dall«
vered by him, as their act and decision to th*
bench. For, as the writing b anthenticaiad
with thenameaonly orthecbanceltorand olerfc,
it wo«M otlmrwisa ba io.tha powar of ttca«
9S]
tftm a PfQCtH 0/ Errm^.
A^D. \6ni.
c»
caiilS»MS he Hid Msmy}y\t tome ahA conflemned
olKei^, hut docs not remetnljer t le
whom^ fuiil declnircs be k notr.M of
twh •wearing^ huLwlU stand t>y bi^ lutiict.
Sic Subtcnbitur^ Ja, Gbay,
Alexander Biair, merchandp dediurefl ecm-
formis la James Gray,
^ Sk Siihcribitur^ A» Buiiiu
AUrander Bothmelly of Glefu^firas, decdarce
lie aisolycd some of the pan nails, and OOQ*
detODied others, but docs not remember whither
lieaiaolyted any of the nyn or not ; confesies
' his ftuh and comes in the king^'s will.
Sic Suhscrihtur^ A. Bothwell,
twop^TVODS, in concert vviih tach other, tomip*
E:e9stb« true Terdict, and subslilule anotlier
ill place, Ajs long therefore as the persons
of ttBnze are all snrrtving, and able to attend,
i ^e court will not readily recetre the verdict in
the absence of any of them ; bnl will rather
adjourn that business to another time, and
take order for compelling^ the obedience of htm
who is refractory, or negligent of his duty.
Such an adjourn ment seems to have taken
place in the trial of Alexander Cunningham for
tire-raising, July 31st, 16T7. But, like the
former, tliis rule'is suitable only to the ordinary
case, and is not observed so much for necessity,
as out of scrnpuloasness, and bAcanse in such
niatten the Uw is desirous of having the best
and moBt loletnn evidence, if it can easily be
obtained. It ti» not therefore to be imag^tned,
that the verdict is Irtst, if one or more of the
ttsige, or even the chancellor himself, happened
, l» die, io the interval before the hour appointed
Ibr returning it. Nay, if any of th em be Uk&a
with a long^ and severe illness, such as disables
liim to attend, it seems probable that here too,
on pccmint ^f the ponnel, who ouffht not to be
kept in suspence. and has right to hjs immediate
, I'reedom in case of acquittu, the rerdiirt sliall
be received in the presence, and under the failh
^d testimony of the other members of assize,
•* The names Of the bquest being called over
In presence of the court, they are asked concer-
, fung their chancellor, which of them he is ; and
from his hands the verdict in receiveil by Ihe
|ice«ding jud^; who hanng unsealccf and
penised it, delivers it to the cletk of cpurt, to
te hy bini traotf^nYed into the record -, after
' which, and a C4ifefu] comparison of tlie record
snd original writing, which takes ptace under
Ihe eye of the court, it is annonnced and read
out aloud. The veolict is then sealed up, io
C'>mpliance with the rcgulstlons of 1672
JNo. 9) which declare that it shall never agitin
I oe opcnetl, but by order of the judge ; and that
Ifthe elerk inf Vrngc this prahibitioD, be shall be
mmMied with the lus^ of his oflioe, and other-
wise, at the discretion of tlie eourtp At that
lime, at appears from the way in which ttiis
article is iutrodur^d in the statnt ICTt, it was ihe
main object of this ordrr, to prevent any all*'-
rmiiott by the clerk or others, of those marks
lMi4<?b wcra tbi^n subjoin*^ tv the ti%W9B of the
Jvhn Binnhg dedntres be oanolyed some of
the defenders, and ooodesntied others that wer
paj^nallcd, confesses bis fauH and oomes in th*
king*a mercie<
Sic Suhcribiiur^ /owjt BnwfNO,
Jawct Baiilte, merchand, dechirrs he does
not remember whom be condemned orftssolyied
of the persona eondescendit on, and «MUMn to
his veroict.
* Sic Subseribitur^ Jasubs Baiuje*
Mr* Andrew TempU^ of Ravilrige, declairei
for the most part he condemned all ♦ and as-
solyied some, and comes in the king's mercy.
Sic Subscrtbitur^ Andrk w Tkm PtB *
several assizers, for tJgnifytng bow tbey voted
and which served as a direction whom to ar*
raigni in case of a prosecution for wilful error,
on assize. Though nut at fir^ intended; thii^
practice serves however the far more useful
purpose, of hindering all alteration of either the
substance or the form of the verdict, on th#
part of the clerk or others, whereon to found 9
flea of disconformity of the record and verdict,
f any question of this sert shall arise, the vei^
diet having remained sealed all the while, and
in the custody of tbe court, will, on bejn^
opened in their presence, stand free from all
suspicion, and testify for itself. In the trial of
Alexander Blair and others Ivy an aisijse of
error, on the ?5th of July, 1681, the lords or-
dained the verdict of assyse against the nyno
persons assoilzieil to be oppined and broke up,
and given in to the great assyse as u tneau of
probation. The verdict was opened and com-
pared with the record, and again sealed up, rii
the case of Gabriel Cnnningham, July t?8fh,
IT 30, who inaisled m sns|ieiisten of a capital
sentence, prononaced in an inferior court.
The like revision seems to have taken nlace in
the case of Livingston (Madanrtn, No, 55.)
%vhere tbe verdict was remitted for considera-
tion, by the judges who had received it on a
circuit. Intbec*aae also of Hog and Boutur,
Jidy 24th, 1738, on a motion for the prinnels,
*^ 'f hat there was Bome variation in engrossing
the verdict of assize in the record from tb#
principal verdict," onler was given to unsc«l
and compare it ; and, being fouiul ri^t, it wai
again sealed up.'* Vol. 2, p* 266*
" The form fof the v^erdict] inost bi^a wreit-
lea form. UTierein the first thintr that is
marked, is the Sederunt^ or the names of th<i
persons of assize ; which serve'4 the iIoubl#
purpose of vouching tliat they were fully met,
aiidof applying the verdict to ihe parUculAr
case or trnif. Frurinerly, ibis wm neeilfid for
a Ihiid reason, in vrder th»t each luiio'v vole
might be suhjoiacd to his iinmc, whereby to
distinguish the persons who might 1h^ liable to.
trial for wilful esHVOO assize : in which view
tlie ix*gulatio&a of 167% |iaiticularly ordered
the chancdlor of a%size to attend to that mat«
ter,'' Vol 2, p. ?78.
* This wt»rd itlt apptars to bf redoodatt.
95] 33 CHARLES II. ProceedingB again$t Aiex. Blair and others, [96
' with the proDoancinfjr of doom and s«nUiioe
agaiucst them till Thursday nixk.
The anid day the lords with conaifiit of hii
majestie's ad\ocat, deserts the dyel agaioest
Lewes Johnstoun, merchant, Thomas r^oble,
merchant, James Baird» of Saucbtounhall,
Robert Sandielands, merchant, Robert £liot
Wright and Alexander Henryson, of New-
haven, who wer |iersewc<l for error cooforme
to ther dittay booked the 25th of July last,
Simpliciter,
John Duudatf of Har?iestoan» deelaircs he
condemned and assolyied some, but does not
nowe remember he assolyied any of the nyn,
and holds by his renlict.
Sic Sub. J. Du*NDAs. RoniEs, Cane. I. P.D.
Sir JohnCumnghatnet for the pannalls, takes
instruments that bis majesties advocat declaires
thut he makes use of no other probation
againcMt the pannallsr, but the depositions k<l
ugaiiist the persons assolyied, ther verdict and
declarations above wreitten.
The lords justice clerk and commissioners of
justiciary, ordained the verdict of assyse
against the nyn persons assolyied to be oppined
and brock up and ^ven in to the great assyse
as a mean of probation.
Follows the verdict of the assyse.
The assyse, all in one voice, elected the earle
of Airlie cnaocellor, and A. M urray ther clerk ;
The chancellar and wholl assyoe having porticu-
larlie considered the several depositions led
againest the nyn persons contained in the lybell,
assolyied by the pluralitie of the assyse, finds
all in one voice the pluralitie of the sdd as*
ayze guilty of error ; and as to the sevin im-
pannalled they find James Grey and Alex-
ander RIair, guilty by pluralitie of votes, my
lord Balcarras, my lord Oxefurd, Gosfurd, Mr.
Henry Maule, Rollo, Alexander Murray, Mr.
Livingstoun, Mortounhall, the laird of Gart-
more, sir William Riuuiog, find them guilty if
the councill dcclaire that those nyn wer the
finly |»erKons proposed, and they confessed they
absolved them. As to Alexander Both well,
of Gleii(»rss, John Binning, Vintner, Mr. An-
drew I'emple, of Itavilrig, are found guilty
by the assyse all in one voice ; and as to
James Baillie, finds him guilty by pluralitie of
votes, niy lord Balcarras and tlie rest betbr
uaiiMMJ iiualifieingasformerlie in the case of Gray
and Blair ; As to John Dundas, finds him not
ICuilty by pluralitie of votes ; The earle of
Airlie chancellar, my lord Dalhousie, Karles-
hall, caiitain M'Kenzie, find him guilty.
Sic Subscribiturj Airue, Chancellar.
John Dundas, of HarviesMon, takes instru-
ments upon the verdict. The lords continues
the pronouncing doom against the jieisons
found guilty of error till the 27th instant, and
ordains them to be carryed to prison, and con-
tinues as to the other pannalls till the said day.
Jtt/y 27, 1681.
The lords continups the dyet againest as-
sy sers for error, till Wednesday nixt, and or-
Jaines that are found guilty to be detained
prisoner till then, that in the mean tymc the
saids lords may a«lvise with the councill ancnt
the punishment of such who came in the king*s
mercy.
August 3, 1681.
The lords continue the dyet againest captain
John Binning, Alexander Bothwell, of Glen-
corse, and Mr. Andrew Temple, of Ravihige,
wha ara found guilty by ana assyse of error, ;
4 I
3Ir. Waller Pringle, for Alexander Bhir
and James Bailyie, merchants, James Gray, qf
Waricstoun, protested againest tlie verdict, as
the ground of any sentance againest them,
in res|>ect that ther vras a former verdict, and
the doors oppined and the samen broke np, *
* <* One thin^' says Mr. Hume, Commen-
taries ** Respectmg Trial Ibr Crimes," vol. 9,
p. S73, **• is now matter of uniform observanoe,
mdeed it is a necessary conseciuence of the sta^
tute 1587, c. 92, that the decision of the assixa
is transmitted to the court through the medinm
of the written verdict alone. Wherein if there
be any thing obscure, or defective, or even con-
tradictory or unintelligible, this cannot be ex-
plained, supplied, or amended by the assize in
court, on the question or suggestion of the
judge ; neither can the judge remand them
mto a stale of iuclosnre, privately to reconsider
and correct their verdict, for themselves. It
must be taken from them as it is, aud receive
the judgment of the court, with all its imper-
fections, how gross soever these may be, and
without r^rd to the prejudicial conse-
quences, which may sometimes attend anch
an issue of the tnal. It is true, instaocei
are to be found of the infringement of this
rule. Such as that which is recorded by Foim-
tainhall, in the trial of James Learm<^tli
i!)ei)tend)er 10th and 1 1th 1678, where, as thai
judge relates it, the assize were repeatedly re*
inclosed, till they found against tlie pannel.
Such also as that in the case of Marion Wcir^
December 3rd, 1678, reported by the sanie
judge, where the assize, *' after they had beea
abroad all night, were the next day, by com-
mand of the criminal lords, and instigations of
the king's advocate, reinclosed to mend thoT
verdict." As*far as 1 can judge from the
record, though expressed somewhat obscurely,
the like had liappened in the trial of Alexamler
Blair and others, August 3rd, }681, convicted
of wilful error as jury men in a trial for treason.
It was objected, that no sentence could paae*
ap:ainst the paunels, " in respect there waa a
former verdict, and the doors oppined, and the .
saiiiiii brock up, upon which jMr. Thomafl
Skene as procurator for the pannalls, took in«
strumeuts." The rccoi-d dues not say that puj
answer was made to this challenge ; nor n «
any notice taken of it in the doom which pasaed
on the verdict. Let me mention too, tuat ^
an advanced period even of tlie present cen-
tury, a verdict seems to have been sustained bv
^pem « Proeeu of Err9r*
tipoo wbicb Mr* Tbarnas 8kene as procurator
fiirlhemiDnaJU took infitniintniU, to which in-
uruiiient ihc tfaidsi (innnulls .idbenfAiid pro^sls
Ibr reoieiil of law e, and ilmt this thcf protesta-
tion migliL be iiiiertio tbebookee of adjourn ul I.
A. D. 168I.
P<»j
the Lords, notwitbstaudm^ an irregpiUrity of
thitittoft, t allude to the sHs^iensJon, pttrsued
. bv GubricI Cnniiin^hamf of a capital sentence
I of the regahiy court ofGIasqpow Aagust 17^0,
»ne of this m4n*8 allegations wai^ (but it was
mentioned ta passing oohs and wan not insisliK]
on as a reason of AUS|>cn9ion,) that^ fmi 'm\^ made
up their ferdWt, the jury separated fur the
ni^rbtt and next duy rctnrncu it into court ;
aud that aAer a ha*ity and not very audible
reailing- (as was said) they reinclosed by order
of the jud^e, Mr. Orr, and a^ain found a ver-
diet, to tlie same or nearly tlic same purpose.
On ih rth of November 17:30, *' the said Tho-
inai Orr being called to the bar, the court took
notice, that he bad tailed tnuch in his duty, in
auppreiiiinfr <>r refusinjf to ally w the first ver-
dict returned a|;aifiRt the said Gabriel Cunning^-
hani to be openly read in iMJurt, tvliich was
the pannefs rijjht» and Uie right of every sub-
ject ; and Uiat he pronounced sentence of death
a(ratnst Cunuinkrbain upon the tccond verdict ^
although the tacts libelled were ibund con-
junctly relevant, and that the jury had found
one ot these facts not pmven ^ therefore the
liorrls K-eoranocnded to the lord justice clerk
lo rebuke the %iin\ Thuu^as Oi r for the^e pro*
r '1- s, nnd he was accordin'^ly rebuked ta
i>ri," Sec. Yet the lx»rds hwd previously
fyi- I •' ■;; verdict as warnuil i«»r sentence
of ( 'ioo. Notwitli8randJni( this pie-
cedt :.il cannot help entertiiioini^ an oni-
bion, that where the final and urdy venlict
which passes ou record is prooouriced after
rc-eniry into court, the regular cou^iefjiience is
the lull uhiM>lritor of the panneli as fordo in^
frinjjrmcnt of the %iatutti 1587.
** It is true, tluit In n-poriioK the sftid case of
ITur , Ifyrd Fountain hall seems inclined
to I .. an thii bend, according as the
mmuK 1ju» e or have not disperjted, at the close
of their first siitiuj?. Liird Royston too, f «•
presses h': . ' . tij^t to Uie same elFect ;
and noil* I also, of the authority
ofatlean^ ,. , where this doctrine
seems to be r I 1 v dehvered, 1 allude
In tl»f> trial ot L...... . -r Cuiuiai|<hatn for fire-
luly 30lIi, 1677, where the iiilerlocutor
"l<>n>: '^ 'I'll* L'lrdM, Sec. having" con-
sul' rptviroed upon the
iao tj that the ^rne is
t)Ot cWikf in sua iar m liiey iind him g'uilty of
the pfe*tifU(thort'«, and nave not fund him
guilty of wiM I »fme to the
dtttay and ih the same to
them; and i vi taict was tint
aflfircd, at| th* tmt pnsent, some
of thcu) haf n I Ml d(»i.|o?«iii^ i^oue
outoftoMu, iiavirt\f thereafter
pust before tin > i:a.iit' n» tit all pre5*ent at the
^nmt> 1T1 of the rcrdjct^ * sa thai tliure has
YUL. XL
\
Mr. PringU also allcadged that the rertUct L
did bear them ^lilty but not of error^ and^j
therfor the justice's' ronhi not proc4^(fil tft*\
sentancr ajfainest them upon that rerdicl. Th«
loi'ds justice clerk and cooitnissioners of justt-
* hein 0€Ca<>ion for the assizers to meet ami-
* speak wkh the persewars and defenders, f*r j
* some persons from them, doe thei^tbre find 1
* that they cannot a^in inclose the assiJu: i* I
hut considering the venUct as it stands, with <
the peliiion t^rven tn be the pannel o^ering' him-
self to banishment, they therefore, by the
mouth of Adam Auld, &c* Dempster of court,
decerned and^ adjudy^e^l the said *^ r
Cuuniug^ham to be banished,** &e. 1> ,
for my own part, I find great di^culiy ut 1 e*
concihn^ a rcincloaore of the ass^i^e, in anj
case, wilh I he injunction of the slat* 15B7,
c. 92, which does not dikting^uish b£tweeo com-
munication ivith thi( judi^es, and vvith others.
And especially directs the assize, if they hare
any duubt of which they wuuld be resolved* io
propose it openly, before inclosing or r«lilovin^ j
forth of jiid^mcot ; and forbids them to be j
removed from their state of custody, till they
be finally agreed on their answer. [** It is sta-
tute antf ordained, that bow sDone the hnill
Dersute, defenses, and answers thereto, ar fuUjf
heard he the assize, gif ony of the saids kssh*
sowrea hes ony doubt quhairof they wald he
resolvcj, that they propone the same openly^
in presence of the parties, in faceof the judg«-
tncnt before they passe out tlienisclves, atid
immediately at^er that the said assise hes
clio&L'U tlieir chanodlit, the clerk of justicinrj
sail inclose the said assize them aikme, or in
an house he themselves, and suffer n a pnrsoa
to be preaient with them, or repaiie them in
ony waies, naiher clcik uor uthers, under pre-
tense of furder inlbrmaliun, resolving^ of ony
doubt, or i>ny uther cuUouv, or occasion
c|uhatsumevc/; bnt that the said house he
balden fast, and tia man present therein but
tile said asbisoures, and that they be tioi snf *
fei-cd to come out of the said bou^e, for
ouhsitsuaiever cause, or to continue thegivinjf off
their sen tine e to another time ; but that they
he inclosed as said is, * unto the time they ho
* tnlty agrteed,' and return their answer t>e the
mouth of the said chancel lar to the judg-e/*)
Whereas, if they he rctnclose*t, their tinal an<
sner is not given until after the du^^dution of
their sitting', and a conference with the court
concerning their deci^iou. ami tuuU r the mtlu-
ence of the seniimeais, in and per-
haps censures, which have ! wi out Ott
that occasion. It ii true, Uim coult-reuce takee
plm-e under the public eye* ; but then, it fot
certain has relation tti the trial, which may not
always he theciiKe as to intercourse viith ih#
jury while iucloiftd t and jf it wer« no more*
than this, it is an objt^tion, acoonJini^ to tho
spirit of the statute J5H7, that the assjite are
vvitiu^i»es of the reception, whether favourable ^
or otherwiM% which lh<>ir verdict meet* Witl^
I rum the audicAcc, and the cuui L'*
u
»]
39 CHARLES II. Proeeefrngi agam^ Aka. BUAr and others, f 100
ciary, be the mouth, of James Henrvson, macer
of c«)urt, deceraecl and afljud^ed the saids
Alexander Blair, Jamei Baiihe, and James
Gray, of Wariesloun (as beinff teund guilty by
aoc assyse of error) to have roriault ainmitted
and tint all ther cattell and other moveables to
be inbrotight to the king's tiae, and to be
earyed to |irison within the Tolbuikfa of £din-
burgh, therin to remaine for the space of anc
year and day, and till they be liberal by tlie
juaticee order, and that in alityme hcrefter,they
bnvc tint the bcnefitt of the lawe, and of the
land, and hare incurred the paine of infamie,
and shall never be heard as iritnes in probation,
or iu acquytance (or purgation) nor to make
«ne oath lirfore ane judge, nor in any other
kind of Blatter, vrhioh was pronunced fur
4ooiu.
AuguttBih, 1681.
Captain John Binning, vintner, Alexander
Both \i ell, of Glencorss, and Mr. Andrew
Trmple, of Revilrijif, who wer found guilty by
ane assyse of wmfnU error, and imprisoned
within the Tolbiiitii of Edinburgh, and the
eentancc and doom against them continued till
this day, being sett at libertie by thelonls of
his majcstie's privie councill, the lords justice
dork, and commissionera of justiciary, did
continue to pronounce sentance againest them
till tlie councill should giveonler thcranent
Wridrow.aftor mentioning the hard measures
whirh wrn; received by David White and 46
ftUiLTH of Ijtuierkshire, whose names were in -
fcirtvd ill the I'roclamation of October 8, 1681,
(of wImhii he says, <' these had nrobation led
•{(ninNi tlicm in nivsence, and all that is proven
auiiiiiNt most of them is Converse with Kebels,
%» lien tliiry were going up and down tliat shire,
and lying in camp there, in which the whole
•hire \vas necessarily at that time involved ;
and tliey are all forfeited in common form, and
ordt;nMl to bo executed as traitors, when they
shall bo apprehended,' ) proceeils thus :
** A few otiiers are brought off by the ver-
dict of the assize, as not having their indict-
nieut proven against them; indeed the pro-
bation against them who are forfeited is abun-
dnntly lame ; Init, it seems, the advocate would
hiive all, who did not resign their lands, to be
conchulcfl under the same condemnation, and
threatiicd the people on tlie assize, with a pro-
ces of error ; and I find, August 3, a process of
•rror raised against those who had been upon
tlie nfisize in March la^st, and had liberate some
df ^e heretors of the shire of Lanerk, notour-
iv known to have been at BoUiwel -bridge.
There are in the Itecords verv long and learned
debates, by the lawyers, in (fefence of the as-
sizers. I'he matter is very intricate, and turns
upon quisquoiis points. At length all the as-
sizers except three come off one way or
other. iSome of them decline their de-
tviices, and come in the king's, mercy, the
ftdrocate deserts the di«t against oUmts. Tii«
tliree whom he insists against, ore Alex-
ander Gray and James Baillie, meroliants ia
fidinburgh, and James Gray of Warristouo.
The court decern them to have amitted all their
chattels and other moveoj^es, to his mi^eaty's
use, and to ly in prison a year's time, liiis
was done in terrorem, and to fright all others,
who should be afterwards on the assizes of
persecuted people, heartily to fall in with the
measures or tlie managers."
Of this proceeding Fountainhall writes thus:
**Junel6. Atprivyoouncil,apreoo^tionwa§
taken for prepann^ a dittay by an assize of enor
against James Baird younger of SaughtonhalU
Mr. Andrew Temple of Ravilridge, Dundass of
Jervieston, James Baillie, Thomas NoUe, and
Robert liSaudibinds, merchants; Robert Elliot,
Hugh Johnston, John Binny, Alexander Blair,
and others ; the assizers, who had on the llith
of March last cleansed Somervile of Urat, and
sundry other heritors, who were pannellcNl for
being at Bothwel bridee, though there was
clear probation against Uiem. 1 he 15 assisen
were called in one by one before the coundli
and interrogate to declare Hrat not upon oath,
which is a new method,) wnether they voted
Ales and condemns, or cleanses and assoilzies ;
(for it was not marked in the verdict how everj
particular man voted, as should have been done
by the regulations of the justice court, and ni<-
ti'lied by the 16th act p. 167S). Some four
of them had found Urat, &c. guilty, which
they declared, and so were freed: Others
craved pardon for their deansing him, aad
came in the king's will and mercy: Some
said, they did not remember how they voted t
Others more stoutly adhered to their verdict
abtohitor, and that in so doing they had served
both their light and conscience. The couneQ
remitted them to the criminal court, to be pan-
nellcd there on the 63d act pari. 1475, ^ tan-
* quam temere jurantes supor assisam,' and to
be judged by a great assize of S5 noble persona
id esf, gentlemen at least. The libel uses to
be in Latin, and under the quarter seal. This
was a strange trial, contrary to the natore of
all other precognitions taken at privy oonncil,
where they were ever designed in the pannel'a
favours for mitigation, and never to his preju-
dice, as here.
** There was never any of these assizes of
error that ever took, effect before this, in Soot-
land : But see one learnedly debate in Deoem*
ber 1635, p. 318, of ray Cnm. Collections.
«* On tlie 25th of July 1681, the libel agamat
them was sustained as relevant by the crim.
judges, and after much difficulty was found
proven by the assize of 25, (though ther liod
packed them, making the m^or part of theim
officers in the forces, and other dependera^
against seven of them, (the rest having come in
thekini^'s will,) who ad lerrorem of oSienwefm
imprisoned, fincd^ and declared infamous on
the said old act in anno 1475 ; though geno-
rally this sentence did not beget Uwn anj ra».
praach."
mpm « PraeuB a/ Err§r.
** Jftnii^ ir, 1685i Jiiini^s EaiUk and Mine
ef the assizers, wfto in 10^1 v?erc conTicteci tt«
guthv of givtner an rrroneous f erdici in Ho-
ilMrrile of Ur , h&mg been sei ai li*
bertv iipoa bo i 1 1 exjininitied to pruon,
tiU tliey ahouifi [my ihKir (incs,^*
A. D, 1681,
The Case which FuuntiLluhall menliotis to
have occurreil iti 163.^, is in the Records of
1 ustidar^ , as fu) 1 a w« :
CvJUA JusTicuiifE, 8. D, N. Tiegis tentaia nre-
I lorio de Etlmburgh, tecundo DfH?om6ri5^
Anuo d'ni I635t [wr magVos Alexander
Collide cU acohatn BoberUiUD, Juitkliuios
Diajititaios.
Jntrmi*
Mkt under Iriiin^^ of LetittlA,
A' U\k,
J he,
W ithyn,
il 4 fVtter-neir,
C. ■■■ - '-ilie,
J-: le,
Mr. Math(m Lummisdtn,
Asaysoffv Ferscwit for Error*
Ditaitiit of ye error comroittit f>e ihRm« in
<tHe porlialt and if illfull claugein^ and acftuit-
Irnj^ ol" Jameii Qordttun aon* to Oeorg;* Gor-
flotm of Logyaltoan of resettling and intercora'
fnf»nm«' of and with Alex. Leilh and Natha-
p . 1 .'oun rebcUfs and fuptmes for dyo*i
, .chip* rcof« thiftis and oppre««rHmes
i^mDJtmi Bfmm ye Laird of Frcndraiicht and
' Ms t^MMIllS SfieMt in ye taid Janir^ Goi-
I pmitj tflit And smime vpone bi^
a^ys^ x^ _^ ,„.. . a^ tlmftif>of ye cryine fbirsnud.
I iVsewarr-Sir Tliomas Hope of Cralgball,
I kttif kl barniufilf his Mti^ues iduoc^t for his
I hieoet iotrifs.
• Pro/oftt<tfr» ^ ''If, Jamea Bain)
Bflr. Tliomaa N < r Mr, John Nis-
bit Mr. WiMJam l'oii>e«) aauoeates.
The fenoom vpone fMnoal naktt instrumen-
lli ol yair Hktrit ftnd pm^stai for yair aaaikNi-
«ds relet t
ily Lord Aduoeat prodocel ano Wtrrand
of ye lofdia ofoeGrail eMttmall of y« do if the
fyH August iasi 1635 for parsute of yeiitui-
Dol for the error abotic; wriiciu Uolmiroff ibe
tciiiior folio wis ^c. togiild«r wMi tlie tmut'
mUis Act* dniiit ye sasl day of ye said mofieth
4f Aofilit t6S5.
IMniteraiy lord idtiocat produoet ye dit*
tftd didairat ikat be had gtrin aae )7op|ne
'of to Mr. John Niabet f|uiba was aduoeat for
I Gordmm in } e iwai urooet Olf ye nii-
Mm tiittav tbe iaiiior tbUowii^<»-^« AlesauiiW
itiviiif MLealyfli Q^etgia Debpiter is H«ir»
9
loim A1e3cander Banennan frf FJmfc JoUn»
r*sfiivie of Gbssacbe ^V ' uloufi of ,
Schcat by n Alexander Abt i IW^rktu-
boiif Ueilof AbercroniT
aotier Keith of l>uj
TuUlefbotidio Geon^e tiomovni (n
Mr. Mathow Luu\i6deii burge» of
James Heatone buries yair" Charh^ ..^,..4
Letsler barges ynrr J olio Caddell seruilor
to RallnmlaUoch' and Ctcort^^ Rriiit* iuirii^
fr\ zeand ilk nne ^ uod
n* H^amekilt as br i-* of
parhamcnt and inviolable praciit^uc ot ibis king-«
dobif? And jipccittiiie be ane art maid in tb^-
reg'neofoitr souerane lordis prcdec^^s&or king^
Jatopji ihe ibrid of guid mt^mi^rif* It in statute
HP t tbatgil ot i'ctii'
< n^ the AS |'«?r-
^< liL tharn* Ik in, wil-
f fiarliahtie Tli put
iuyti Ltjci of auesssyir of taenti« niea.
Aod being ooayi^ed y*of sal ' hod
acpoirding to the lawis of y^ ki *
the suid Miil r»1 pHrliament at letj t^i
Nocht withstanding qVof it is ot . .i ill
ze and itk aoe of zow bt?ing in ane rourt of
juaticiarie bablen within ibe tulhutb ot Edin-
burgh f pone the fvti day of August Isfit by
post in Ibis instant zetr of Gt»d J^m^vi, c.
tbreiiie fyve seiris he Bit. Alexander Cnluile of
Blair his ma'ties justice depute cbotsei ng res-
siiuit sHome and admiHit rponc the as^ysc of
James Oordoun sone to George Gordonn of
Logyaltonn quba wasbrocbt filnb of waird and
that day presentid vpone pannell hetbir th#
^id justice depute as ana noitoar nialdactour
and treapassonr indyttit and accusit be dittay
ui the crymes dter spe'it at lenth mentiooet y •
infill Tiz. flbr reoepting stod intercomonitig of
anc Alexander Leitb and Nathaniel 1 Gordouii,
baith rebelled and fugitiues for thifl alauohter
and burning of the lainl of Frendrauchts coirnetf
ami vthcris hearschips and opprcftstones com-
mittit againes tbe said lainl of Freodraucht
and bis tcnocnte^ speriallie for recepting of ib«
said Alexander Lcith and Nalhaniell Gordoua
rebelles tbirauda in ye munetb of Mercbe laai
W&6 zeires And intercomrooning ivitb tbams
within the said James Gordoun bis duelling
boim^ in Knoklvttb at ye leist within bia cksio
y*of As also tor ioterconioniog and kcjping
c!Ofnpany about aiich dayis y%ltir ^viih the 6aia
Nathonieh Gordoun and Akxnndrr Leitli
ivitbtbe diidlinsT house of Mohcrt LolUtje in
f Iss4ie Walii* quhair ye i»aid Jar*
and the Katdis rebel hs soup pnl <
ny'C and coinmonod and eoiiif^rr
tbar splice of tbrt!c houroi
tbmy went to year Iteddis
Gordoun and thay lay altugidder
mer Ihat ny't the «skl NuttianuM Goitloun
Altasuder iJeithr being in one betl and thf said
Jantsp Gordoun wiUi urn? tii^ben llcmpiii^frof
fiiitebnie ir^ v htnl ond that fxpres
agniois the n < 1 1 1 the cunLrair sprciath^
the 97 oetot tlt^" 't vmt |]arbaujL*nt of our !(oiie*
rnn^ lords darreal graudfV king Jaiii«« tliv
,. . 4.ori{i]l||1
:hat
. bo
I L>elbir
nt JfinK-a>
111 Ltue cbal-
TO3]
3S CHARLES IL Praceedif^9 M^mnH Alex. Bhtrani oiher$.
^ftof etcmall mernorie (jiihiilrby it istxpreslic
prov^'tlit statute ami onlnmit that na oiauer of
pf rvme wtifnUie or wiltluglie recejit supplie
maittefiie lietend or do Fauor to oiiy of bii ma-
jesties rebellts beinff tit ibe home wiibin yair
hoQse laudis bouiuTes ur bailzeries vnder the
jKuie of tiaiih to be intiicted vpone the t.>ontia-
Tcncr with cvrifisaiitoun of his haill liioferble
jTi'idis and iijraiiss the teonor of bis nm^ties
jiniclumationesmnid and publelst mye cotitrair
111 ya fiionfth of Januarla^tat ye mercat croeea
4jf Abci'df ne Bantf and ¥*thevis mercat croces
?«f the north purts of yb kio^ome diMhar|reing
aJI rpoepting' aiitl intercoutmnaiii^ with ye saidi^
rebftlis r nder the pains foirsaidis »peU in ye
ftRid act of parliament As the Mid dituiv pro-
ducet he air Thomas Hoipof Crai|fhall knyt
Wrrm«t advocat to otir souorane loni as per-
se war y'of for bin hienes iotreis uganist the
«nid Jamen Giirck»tiQ than iod} tet and accnset
j«rdit'iaUic y'rby ot' ye crj-mes forsaidis y'in
ountentt in p^us of ye said justice ile[>ute tban
•itand in judgfinetit in ye selff profMJrtia Et\cr
acfU!»atioti of ^e quiiilk James (iortiouti be ver-
teur of ye said ditUy <il ye cryiues foirsaidis
•|>e^il y'lntill it was alle^t be Mr. Jtihne Nisbett
iMhioca* as prelo^- for the tiaid James Gordoun
thai y e dittay in that p*Mnt y*of atient intercom-
momn^ was nawayis relefant be inferring ca-
pitall puneichmeot y^upoo beeaus the said
Uittay was not:ht fouDdit %poue the act of par-
lianteni nor uponc the commoun law Nnther
was it releraotlie subsumet y'intill that wit-
tini^'lie or withtiglie the pannetl intereomiuoned
iknd that ane occasionall run countering' could
nochl iiupotrt ane acccssioun to yair rebellioim
quhajr p'teis ar sarpryset with y* earning to
yair awm bouss or to other places qubair they
are And cannocht desinfrauge thatnesclffis of
yair compunte for feir of irritatmg^ of tbame as
mne in««noe of Walter Hay and J ante Grant
And in the present caice as ye pannell hes de-
pooK That he bad bene iii Hobcrt CoUenes
lion^ in Hassiewaltis with Hobert Forbes bro-
ther to the persone of Aachterles Robert
Bemptter of CiucbDie and Robert Cotlii^one
burgfs of Abenlene. All vnsuspect and honest
men half ane day befoir the relielli« ciiming to
ye house quhtik coming ol^ye reb<>!|iis to ye said
liousc wa« at nyne ho ores* of the nv*t ijuhan
the pannell could nocht gae elis quliair being
benichtted. And the rebellis for yair securitie
b«iHog srhote and tnaid taat ye durris of ye
flaid house And as to thai ^vord * coofereoce'
mentionc't in ye dittny Tl»e samen is nocht re-
]#vtint to impoirt JntcrcouimuDinr^ rales It
iMd b^'nr subsumet y'in that ye paanell horl
tfdttrt Willi ye rdbelUs cottcemiDg y* rebellion
th^ir relH'ltioiui practizes and desi^i^s off pur-»
pois to Inn
act of i>
<#ptti\cr
an I'
•lUEtUuUU^
tm Num.
I) iuid favour tha me conform to ye
quhtlk probibdUis all re-
: unA m&ntening of rebellis
I or Alul the law
()te« cum banuitig
^i| I Uuiiti^ji r Phar, quest.
17 ^« L4Uit ' H «t tractatiti
mtm rtJittUibus auAt v«rha tr i^ututaUiia . * * Aitd
y'foir caoiKfcht be vuh««met releianMie »pf»1
ane at ye maistluaficcaisioiiall fortoite mirpry
qubair mto anitueir being maid be his ro^i
teis aduocat as perse war of ye dittay A\
namelie to that pairt of ye said alledg^ii
proponet agiunis the secund pairt y*of Th(
the ^amyn tuchl to be repellit in respect of y
dittay quiiilk is foondit upiiie the aetes of jMif-
liament and nocht upon tlie commoun law* aad
ye particuler alleijatitjoes adducet imi of ys
mw and doctors hes only place in bnimitiji toi
ane periicular cryme committit agantst »W
subiect But nocht in tliame quha or biiDiiil
and proscryret for ane publictrcbellionn as th'
is And the occultatiouD of yc deiiouuctil
q«ibilk is vrjjet in the deliffnce is uuly in frag-
ranti crimine and q*r ye committer of tbi
cr\ mes is persewit hett fute in qiibilk CMioa
(^cruliutioun hes some respect hot nocht ryer-
wayis x^nd lor the poynt of knowledge in aoe
iJuLlict rebellioun the notoritie is sufficieni
bot to mak the patinell iucxcuscable his nieit-
ting- with the rebellis at ye tinu^ q^tenit in the
dittay As in M*che 1635 efiir publict inhi-
hitioun maid be bis roa^ ties Trez in Jdmiarof
befoir And the excuse of chance m meiitiiig or
of ye inteotioun aud purpose is frit 6k>us Wo€
than everie man sould be excuset vpone his
intentiuiin And the crynie of recept and inters
commoning (quhitk in so publiet a retielliouo is i
equall to ye crvme ikielf ) sould be vn*punet8ifl
but the panneli catio'icht be hard to preteii^|
naiher accidental] meittinfif nor excuse of tutiat«*
tioun Becaus at the first tyme thay auM
to his awin bouse and in taikin of y' familia-
ritie tbay socht ane lane for him of ane pif-
tolet and within aucht uays y Vfler, thay mett
at tlie house of HassiewalUs witliin ane mylt
to his awin house q'upotie inbtrumentis wis
tan e be his ma*ies ad?ocat that it was erantift
be the pannell that day in judgment that y«
said house of Hassiewtiliiii was within aoe myle
to his awin house quhilk raudtn i^ the panneU
to be altogidder inexcusable speciallie iu re^
Bpect of ye actis in ye parliamentis 1^67
1681 1592 quhilk commandis all sublectis
rnder the pane of daith to follow and reveill re-
bellis with hoy and cry And to have na cou<
ference with thame without command of yi
s'reflTof the tcbyre.
To the quhilk jioynt of my lord advo
ansV concerning his Tps distioctioun de bon<
nisii. It wai y*efter doplyit be the pann^
and be Mr. Jon. Nisl^t his prelo'r That y
samyn is altogidder without warrand in law
quhilk speak is indi^nctlie et fipeciHce etiam
tie bannitis et pri>f^cripti« locis supra citalis
Fanler it was duply it that occult alia being es*
senti^il in the cryme of recept quhairby recept
is only defy net in the law most be lybellit non
solum in fragranti crimine Bot in all dittay is
cijncluding tne receptm^ and puneiscbinenl
y'of ft was also duplyit b«t ye said James
Gordoun and his prelo^r that the notorietie of
yc rebellis reMhoiin and prose riptioun cai
nfK'hi be obtrudit at leist sa ag^^vatlie tlie sai
ailegit ciyms of reosptiog betng sa s«hun«'
upm a Praetn of Errcr*
A.D. l6fii*
flOff
dYer y* pTOtcriptiotiD And last it wm duptyit ; mainslaf tdaocat be the maothetnd judtctmll^
Ui«t ye fortune raLic»»tiiit*r of Telieilis most
|iur^e mtercf>nitiKiiUn|r or iflitet^ull he irbi<
tr&rie t«i mak ye km^i^ li>)all Hntiipclis ijiter-
C4»mti]0DeriB as is in^taticefl ol lufbir be Walter
Hay And sp*?ciallie in tliis caice qr* ye tor-
tuitnes jLtid occiilf-mall uu'ttin;^ %«itti the snidia
itsbeltis h nocht only a%erred be the |»ant)ell btit
may be ckirml be thre or foutv unsuMpect gen-
ttlmen ijubilkif uar preiicnt with the pantidt
und violentlie detenit and keipit in the-liQtiie
with him.
£<\er ihe proponcin^ of the qnhilkls alledge-
mtioea ansVis and duply is aboiie writtin The
justice be! Tig' ryplie ;.Dd sit length advyss^t
y'with be his mteHiHjiiitor gevin and pro-
fiuQcet y*antdl repellit the toirsaid alledge-
arteea and iknd and dechiiret That ye said
James Gordaun than vpoue pannell aucht ta
pa« to Ihe knawkdge of anc assyse fur inter*
commaning and remittit that pH of ye al-
ledgeance wittin^lie or udlluglie to w cog-
nocest vpone be ye said assyse As the pro*
cets with the intcHo*r ahoue written pronuncet
y'io al lenlh proportts.
Ltkiis etter ye proounceing of ye quhtik
if]terk>'r be the justice ze and tlk ane of
zow being^ callii vponc resaauit aiiome and
admittii ?pone ye said James Gordoun
Ilia asiyfce aa said is for tryell of his guittte*
nea of ye cry roe alioiie* writtin ape'il in
bis dittay And his mai'tcii aduocat askand
inslriinientia y'upoun and for veri6cattoiin
and cleiring to zow of the pannelles guiltines
of ye suid dittay in sua far as did consist in
facto tjrVpone ze war only to cognosce pro-
duce! judicial lie the said James Gordotin than
i^pftne panuell his I>epositioun quhilk was than
judicallie rctd in soV pn's and audience sab-
scry nit with his hand As also repeittit vnto
aow the notorietie of ye rebcJles rebellioun
The hoirniogis and Tres of intercom moaing vset
and execute in Jaouar last Efter ye q'lk
poblicatioun and inhibitionn yHn eirpremit
I be pannell tneti iwyce with the rebellis s'ranea
in nit awia house And within aucht dayls
Vcfter within ye house of Robert Collie in
HtHiewfllhs quhilk is only ane myle from
the pannellia a win house cotife&sit be him ju-
diciailie And thnt he aoupet and co^lerrit
with thame thrt hoVe y^ett^r and Jay with
tlianiie in ane chalmer alt that nicht his house
being within ane tnyle yairof And in respect
ol'soa cl«rir and manifest probiitioun hii»tnaiesteis
aduocat than protesUt tor wiltuH ern»r ai^uines
sow in caice ze sould acquit or ctancfe the
itid Jamrs Gordoun of ye crynie foirsaid con-
tetiit in his dittay And trew itia that ze
all being yairetiir'remoyet ftirlh of court and
ioicloaet within ye assize house of ye liaid tol-
Nithe and haiftng coosultit and reasonet
vpou (ha fK»yii1ea of dittay aboue writtiil re-
firrrit to zor kaaw ledge and del'^rnituaiioun
And re^eniering agane in court ze nocht-
mthatandiiig of ye cleir verificatioiin and pro-
^balUmn of ye said James Gordoun his guittiues
9^ ye cryiaa foii-satd raat and pi^ducet be his
L
declnrutimin of ye said Alest* Irring of I
Lenturk chanctllef eleciit ami chooaen be zokt ]
Tponc the said ;issyse all in ane voice land
prontmcet and declairet wilfalUe be favor par- '
tiallic teroerariouslie and be partiatl meaaei^ I
The said James Gordoun to be cltiane innocenCJ
ami acijuil of int<brconimooiug with the re^f
bell is speci6et in his dittay and depositione^^
wittingiie or willullie at ye tyines nex*ine men-
ttonet yUntill In the doing qnhairof zcand ilk '
ane of'^zow hes commit tit wilful I and nmnife<it
at ye teist temerarious erroV and auch'flfi
and sould he puneist in zur persones and guidi#'
conforms to ye bwis and actis of parliamenC ]
of this kingdome llecaus efler the alteadge^
anoe« olioue wxitrin maid be the said Jaiueg
Gordoun and his said prelo*r and ans'ria
maid y'to be his m.iiesteis aduocat nathing
being referrit to zo^r cognitioun and tryeU
bot allanerlie the panncllia intercom moning
with the rebelJis at ye tyoMs contentt in hia
dittay And ynt p*t of ye alledgeance anenf i
wittingiie or wilhnglie to be also cognoscet
and tryed bt zow Quhilk intercom mooing
with the qnalitie y^of tiz. that ye sarnyn wa^
wittingiie or wilfuUie done was cleirlie provin to
zow be ye pannellis a win depQsitione#i ]
Quhairby he granted and confesset nts inter*
eammonmg with the rebellis at the tymea
q'tenK in his said dtttay and in maner cleirlie «
sett down y*inUll And as for ihe qufllitic «*f |
wittingiie or wilhnglie (}'rof aither of thame
is sufficient of ye law to mfer the puneishment j
abrme writtin* the samyn And speciallie
that member y 'of wittingiie was cleirlie proriii'
baith be the said James Gordoun than im*^
pannelht his depo<rttione$ and als be ye do«^ j
tohetie of ye rehtllioun q*rof yc said AXvai^t I
Leilh and Nathaniel Gordoun war special I ac*
to^ris And they denuncet rebellis and put m
ye hornc in ye moneth of Januar prececding; I
(.iuhairhy they war denuncet at ye m*cat cwc& \
of Aberdenc being ye mercat croce of v€ ]
held bur* of the a'refdorae within ye qnhtlk' I
the said James Gordoun intercommonet w*|
the saidis rebellis And als be the Trez direct i
be the tordis of aecreit euunsall inhiheittinf'
and discharge! ng all hiK maiesteis le^s and sub*
iectis inlercomniune w't tlie saidis rebellit
Quhilkis war deutie execute and publetsi af |
ye said m*cat ci-oce of Aberdene vpone the' j
saxt day of Januar last Quhilkia depo-
sjtiounes Trea of hoirning Prez of intercom-
moning ane executiooes y 'of was producet and
red to zow And quhUkis did evidentlie prove
and cleirlie vcrifie that ye intercommonin^
was wittingiie done in respect that member
of ye dittay wittingiie respectis onlie the
knawlege of yc subiectis coraroittJUjj againist
the lawis ana actis of p'kament be inter*'
oommonin^ iriiB. that they knew of yt rc»
belliouu And that the persones w't qubome
thay intercom mot i«d war rebellis The quhilk
is cleirlie provin fimt be the said James Gor*
doun hi»awindepu«itioun« Nainelie be that arts* i
cle y*of bearand that ye satd James being de» *J
lOT]
33 CHARLES II. Prautdimgi cgaimai Ak». Blair and otiers, [ 108
mandit be ye lordii bis examioAtore quhat
ooDfereoce past betuix bim and ye brokin
men attbat tyrae of y' being in Robert CoJleis
bouse in Hassiewallia He deponeC tbat be bard
thame say tbat tbay bebovet to leave ypooe tbe
laird of Frendraucbt till ye marqueis bame
cuming becaus tbey wald be forced to lea?e
the couDtrey As abo hard Natbauiell say tbat
he bad cbaiset ane of Frendrancbtis men tbat
day tbre myles And tbat all tbat tibay had
tane fra Frendraucbt was spent, and bad nevir
done tbame gmd &c. And als is deirlie provin
be tbe notorietic of ye said rebellioun, and be
tbe Tree of homing and intercommoning pro-
ducet. Qubilkis Sk* tbame selffis ar sufficient
to prove knawledjgfe of tbe rebellioun and of
tbepersones declaired rebellis and of tbe danger
of tbe law be intercommoning with tbame
and as to the vtber member of tbe dittay and
actis of p*liament ar'vpone thesamyn is Ibundit
oubilk beiris wiffuliie, Tbat member (albeit
the said James Gordoun bad bene frie y'of as
he is nocht) coald nocbt baif fred bim Irom
the cryme of intercommoning. The vtber
member of (wiitinglie)qabilk per $eia sufficient
of ye law beinir sa deirlie vehfeid as said is:
And of tbe qubilk poynt of intercommoning
iwittingbe) zethefoimamet persones of assyse
les clauget the said James Gordoun baith wit-
tiuglie and wilfoUie And Eit to convince zou
and ilk ane of you assysors foirsaidis of sa
oppin manifest and inexcusable proceiding
^anis law and justice and of zor solempoe
oatlie gevin be zow at zor ressaueing and sneir-
iiig vpone the said assyse It is certane be
the proces and course vairof, and writtis and
Srobatioun pnNlucet for verificatioun of ye
ittay That the said member (wilfullie) was
also deirlie verifieit to zou and everie ane of
zou assysors foirsaidis ; and tbat in the daoge-
ing of ye said James Gordoun y^of ze nocbt
only bail committed wilfull and manifest error,
bot also to ye great contempt of bis majestie
and of bis nienes royall autboritie hes done
quhat in zou lyis to foster tbe said publiot re-
bellioun in the nortbe, by prodameing libertie
in sa far as in zou lyes to all his maieaCeis sub-
iectis to intercommoun with ye saidis rebelles,
in sua far as be zour said verdite ze baif fund
in eflect all intercommoning with the saidis
rebellis to be lau'll vpone the sole dedaratioun
of ye iutercommoner that the samyn was
nocht done wilfullie but accidentallie, albeit be
the lawis and actis of p'liament, all intercom-
moning with rebelhs (speeiallie be sic aae
oppin rebellioun) is nocht only prohibeit vnder
the pane of death bot also his maiesteis haiU
subieclis ar commandit to follow rebellis and
trato'rc with hoy and cry and to present tbame
to justice And that all his maiesteis subiectis
do thuir vtter dilKgence at the vttermost of
yair power in searching seiking taking and
ai)prchending the rebellis and following of
tbame and to mak intimatioun t» tbe magis-
trattis and to |)erMne8 of power and authoritie
for aDDrehendmg of tbam to be broght lo ju»-
4 iial natM interacNDBMiu wiita the
rebellis vpone ony pretext without tbe
warrand and knawkdse of ye s'reff and judge
of ye contrey sua that aU intercommoning
most be wilfull Qubilk is done aganis the«xpres
ordour prescryuit be ye saidis actis ofo'liameolip
And spedallie aganist ye actis in December
1667 October 1581 and June 1593 quhiDcis
war quotted and alledffit to ye justice and to
zow as assysors and uie samyn deirlie verifeit
to be so be the said James Gordoun his awin
confessioun in so far as in his depositioDea hm
grantis and confesses his intercommoning with
the saidis rebdlis in his awin dose at quhilk
tyme he was obleist to acquent the s'reff or
some judge of thecountrey of yair being im
that part of ye s'refdome Ami as to his in-
tercommouinr witli thame in Uassie-wallia ha
hes deponet That about aucht dayis after hk
mdtting with the saidis rebellis Nathaniell
Gordoun and Alexander Leith with tua fata-
men come to Robert Collds house in Hanie*
wallis the marauds of Huntleyis landia q'r
the said James Gordoun (impannellit) and Hu-
bert Forbes brother toye peraone of Auohterlea
Robert Dempster of Cfuschnie and Robert Coi-
liesone burges off Abirdene war the tyme and
had bene yair half ane day of befbir And that
Nathaniell and Alexander Leitb come to this
house about nyne ho'rs at ny't and that he
(viz. ye deponer) and hiscompanie soapped
witli tliame that ny't and remanet with thamo
about thre ho*r bdbir tbay went to bed And
that tbe conference that past betuix the de«
poner and the brokin men at that tyme wee
that he hard thame say that tbay behoreC to
leave vpone the laird of Frendraucbt till ye
marqueis bame cuming becaus tbay wuld M
forced to leave the cuntry than And that he
bard Nathaniell say that ue had ehaissed ane
of Freudrauditis men that day thre myles and
dl that they had tane firae Frendraucbt wa»
spcndit and had never done thame giiid And
deponet that ye cause qrTore Nathaniell chaaei
Frendrauchts man as he affirmed to ye da-
uoner, was becaus he was the s'reffis spj
Deponet lykwayis that Nathaniell Gordomt
hau tuo lang pislolettis and ane gwn And that
his roan had ane pistolett and yat Alexander
Leith had ane gwn and ane pistolet Deposit
also that the ny't tbay war in Robert CoUiee-
boose the deponer auu Robert Dempster lay m
ane bed and Nathaniell Gordouu and AleOLander
Leith lay m ane vy' bed in the same chdmer
as ye said deposilioun beiris Lyk as ye said.
James Gordoun than vpone pannell gprantit hk.
judgement qV vpone his ma'teis aduocat tnik
instrumentis that ye said house of Haaaie-
walliB was within ane myle to his awin bouae
duhairby it is evident that ye said inleroin»-
moning was wilfullie and in grit contempt of
his ma'teis lawis and au'ctie necaua this waa.
tlie secund tynse of his meitting with thame
efier the first, and was within ane myle to bia.
awin house Sua that he my 't baif retired him-
self to his awin house that ny't and schwuncd
y' coaspania qMk be did nocht hot be the coa-
tcair aoapped with thaiBe and dlir supper eot^
mp4m a PrcuM of Err$r,
A. D. l6at*
[!!•
»
fomd with Uiiffi^ llire hoV And yVAir ky
in atM3 cihuliiK^r wttK thftmequhilk if oU eon-
femi in hin abtnif writtin depcinitiuun Aiitl qV
Bfl il [fTiiv a|»|icir ttui the aII^o maid fur
ye Jiaid /utnex Gordauo titien t I of in-
tMVOI^unociitig will'iiliie wm refumeil he the
JuitilM lo J* ftstyte that can be na cuHoV nor
^feltst to firii sou or anv of Xfiu as tuis^sors of
MfiuNe tmd eool^mpi of his ma'teis autboritie
Becaiis all that was altegii he the paondl and
be Mvr John Nishet hit* preloV was that the
ditiay was nawayis relevant inferriiifi^ capital I
jiwiiebchiiieiit vpotie intercomaiootritr because
II m ttocbt foujidit vpone the act or parliament
moit rpone the commoun law Nather h it re-
JstaotNe mbitiniet y'intiJl that wittiDgUe and
willinglie the panQeU intercom mon^ And
miie occasotiall rancounterin^ ean nocht itn*
poi8t aoe aoceBioun to yair rebeltioaa qu'hao
|i^teis ar surprysed with lb air cuming to yair
awin housii* or to vtber places quhnir tbay ar
and can nocht clisiogadge thumsclHis of yair
eova^nh hr feir or trritatine of Lbame as is
* b^ Walter Hay anil James Grant
And ID v^ present caice as the pannell hea de*
ponettBat he had bene in Robert CoHeis house
in UiBtie-v%allis with Robert Forbei$ brother to
ik0 pcfioue of AuckterTes Aobcrt Dempster of
CiMOhoie and Habert Collif^fone bitrges of
Abirdene all rnsaspect and honest men half
ane day betoir the ret)etliscuTning to the house
<|ubi]k cuiiiiiijBr ^^ y^ rebellis to ye said house
wai^ at uyne ho'r at ni^ht q'n the pannell could
BOcliI goe els^ q'r bemt; benichted And the
ivbeltit l«ry* securitie baiting schota and maid
fittt ye durris of ye said bougie And as to that
woru *■ conference^ mentioned in the dittaj the
lyn is nocht relevant to impoirt intercom-
iog vules it had bene suhsumet y * in that
nell had treittet with the rtWUis con.
\ng y * rebcUioim tbair rehetlious practizes
rnf>' of purpois to help and liuio'r
ine to ye act of p'l*Hment qiibilk
II reception snppUting and man-
i«iung of rebel lis and ^eneraliie all doing of
liuoV And the law jovne? ** conversantes
tractantes euro baunitiM ve prestaotcs
complexe" Pbar. <[uesL >ti. 172. Last
I •* conveniatjo el tractatio cum icheliibus ffunt
» f«rlm frfquetitmioH'* And y* loir can nocht be
LflbAumet rfi^ caist tua
K^kftsiouall HI ite said
^^■■cptioun b«'iri<^ i^ Ka> y ^'i ' !in
^Hpftssnid exceptioun it w ^)tf
^IBld Mr. Jabnne Ni^ibel to liiL im^ i uiuiu b*f
bis .MttieMriH Aduocat Tliat the distinctioun
tnatd be hi^rpi/f ^,.,r...>ti.r w^^ .,ii,»,T,,i4,T. with-
I oat warranilm Uu tUe**et
I SlM^'itHT- rlinrn *!*■ is, loCIS
1^1 iiat OC'
ctii't' i recei»t
qVby i\:
most b'
Lot
h« tilt: 5.*U!i ,Mi, Juhaai; Lliiit Xhti iioloricUL' ul
Itic ccbcUU f^bdlioua aud prgscnptigau (;ouid
nocht be ohtmidit at hist «b ft^fgrnraflie th« it-*
ledpt oryii»# of yair rcceptmg; l^ng' mi sehorti
et^ir yair proscnptioiin And loi^t the fortuit*
rancounler of rebellis moot purge intenooin*
inonini,^ or elUs it sail be arhitrarie to malt th«
kinf^iH loyall tiibiectis intsrconifnoiivTis av wat
instaneetbe Walter Hay And especiallie lA
this caice q^- the fortuittK-s ocddentiuJie of yai^
mdttin^ is noclu ooly Hv^sired be the panneU^
hot micht be cleired be th re or fnire msuspect
gentilmeti quha war psesent with the pannell
and violcntlie keipit and dctettit in the bous*
with him as at lenth is coatent tn the sRl<f
dittay.
Uuhilkis aUedgeanoei gifand the Ktimyn \m^
bene Feleiraot, as thay war nocht t)k as tike
jad^fes in effect hes fund the samyn oochC
releraot In sa far as they repellit the aU
ledg^eance ifi jtir« And referrit the fnict an<f
deid to ssor ci^itioun as assrsors and judg«f
y'to Nather was yair ony thing producci b«
the psDoel tiz. James Gordoun or be bis pro'n
before the sweiring of -zou as assyKors or t^
and befoir yon efter *e %rar sworoe befoir zor
remofeing out of judgement to rerifie thai
poynt that he was compeillt or that y«
durris war 9cbote and made finrt Sec AncI
tbairfoir ze and ilk ane of zou as assysor*
was iu law aath and conscience bund to bav^
judged acoordbg to the d«po0ilii»oea ami
veriticatioiica producet bo bis ma'ties ad«,
uocnt Quhairby the said James Gordoun hia
wilfull intercommomo^ waa aufficientlie w€ji*
feit to zou as saldis nor zit was it ^lossifal^
to ye said James Gordoun than vpone paanfll
or Uh prelo're lo produce ony vertticatioutii
for cleiring of that [M>yot or g^if he hadi
producit ony (quhilk was not done) his I^la'tieci
Aduooatas per«ewiu- wald baif cleired thai thtt;
samyn could nochl had verifeil that j>oynt i^
that ye said James Gordoun wa« furcel o^
compellit becaas it is (^ranted in ye said J
Gordouu's de|>osiiiones that yair wat fviti
by the g^idoiau of ye house and histerr^
thre vtberis persones viz H^jbert Forbes bro^ij
ther to ye persooe of Auchterlcs Robert J
ter of Cuschnie and Robert CoUusone _.
Aberdene Q,uba being ane number of persones
about six or sevin, or mais accainlln^ t# ye
nuoibcr of the servamlis of ye houM the naiiK''
berqVof was wdll knwvria lOfxiirtol'jcou that*
war vpoce the said aasyse eovild nocht hail*
betie forced be ye saides ttia rsbeilis <:>r gijti
tbay bad forced tbame i» eoliMttinjBr o^ Y^ J
durris and keipmi^ the kreto y'awin handie>y
The said James Goidoun and remanent per*
sooM beings with him warobleist in law as Ipui4^^
and fakbrull tfubwotis te hatf aent out ana (
be tpe privat way or wieddw and le hi
y^by f^evm adrerteismeut to tho lycntlewieii
ve cuntrv neirest abc»u« olT yo taid<l
Ik my't haif henet^iHalie dotift'
.;,^ to bed nnd mmr ejwjdic eftir
^vttr tn yn ' ' y*in
V war buiJ tifUr
rcbellis yuir nvrav , y^
\ : , fui tb of ye tM hou A*
nn
35 CHARLES IL Pr&teeiing$ against Alex. Blair and others,
t«rTed tiie way quhair tbay weol and to hnre
raised the counirey and tjr> have follow it thame
be boy and cry» quhilk thay did nocht liot its
is granted be ye said James Gorfjoon Id liiii
depoaitiouD thai he tuik na heid of ^air pairt-
me or away paflsiog In the rooirDini^ Be the
quoilk dednctioun circumsiancei deposuionea
sndftfaeriB befoir deducet it was maist cleir
«nd manifest to zou the saidU persones ressauit
auome and admittit ifioae the said James Gor-
douB his iiitercummonin^ aboue written wilh
tlte saidts rebel lis was wrifuliie done be him
expres aganis the (awis and actis ol pMiament
and prt)cramationes publeist in the cootrarr
And thairfoir yefoiroamet persones suoroeand
admlttit ?poiie his asayse tii sa tar as ze baif
clanget and acquit ye said James Gurdoim of
yejiaid poynt of wiUViIJ tntercominotiiD^ bes
OOeht only incnrrit u itfull and periiirious error
affani!»t the Ucbt of zo'r awin consciences bot
ft wo hes com mitt it aue grit contempt ngiinist
I his nia*l^e and his bienes au^ctie And y 'throw
hes incorrit the pane and puoeisbmeDt sfie'it
and set doun in tbe autd law is and actis of
p^Iiament of y is kingdome Qubilk auch*t and
60u1d be execute aguuist zou and ilk ane of zou
in maiat exempkre maner to the terror of
Ytbcris.
Thaireftir my lord Aduocat producet an Act
©f yeLoTtlis of secreit connsalJ of the daitthe
first of December W^5 no'iatiojjf and appoyol-
mg John eric of Tr'quair Archibahl lord of
Lome Williame tord Alexander and sir John
Hay kny't clerk of reg^s^er or ony tua of
Ihame to be assessore to his maiesteis justice
in this proces of eiTo'r p'sewit a^nis ye per*
sone^ on panoel at ye instance nf his raa'ties
aduocatflbr tbe erro'r committit be thame in ye
temerarious and wiJfull clangeing of James
Oordoun of tnterconmioning' with the rebel I is
q^tenit in his dittay Lyk as tbe saidis John
erle of Traqaair Archibald lord Lome and
Wm. lord Alexander being judiciallie present
accfptit ye said charge as assessors vpon
tbsune to his matestels justice in ye niatter
alioue writttn QVrpone my lord aduocftt askit
iastrumentis.
Tbe said Mr. Thomas Nlcolsond adwieat as
aoe of ye prelo'rs for ye pa on el cotnpeml also
for Alexander Key't of Dnffiis as proV for
him and orotestit yat ho my*i be hard lo pro-
pone bis lau'U defence vpone the order [ire*
scrvuetbe tlieactof pNiament vii. Tliat ve
said Alexander KeyH of DnfTus can nocht (for
his nocht eompeirance Ibts day w4 ye rest of
ye i>eriQlies of %mym) he laulie domet nor
adiildji>^t to be put to ye borne hi rt'Sjiect he
was niK'bt charget nor ceittetl to com|>eir Ijefinr
yc lor^is of secreit couiuuiU as ye rt^t of ye
asij 6or cumfieirand war diet and rharget,
Tlmird^ir the panne) and ye prelo^rs befoir
' «l betoir
no
kd
yair
drij^r
rony 1
' proc^
better
this cans that ye aii)di!» preJo'rs for
jiaratiouu
' '^ ^bttay [iraducet ami red may baii^yo ooppie
to anH r to ye poyntm
y'of atid ane tyme afTixt to thame to
y'to My lord Aduocal decJairet that in
of ye productioun uf ye dittay and publt^
rcimn!,' yairof in judgement in sudieiiceof m
lord justice and j>ersonea vpnoe pan n el ani
that v*eftirthe pauuelis preUVrs schwnc» pre-
sent disputatioun and craves line c«»p|)ie of y<
dittay My lord Aduocat y'loir and to y
effect the preloVs tor the panoel may be pre
pareti to aosweir without farder delay nor ibn
ciuhilk ye justice sail be pleiset to L^mnf r
tua me at this tyme produces th
crimioall q*r in James Gorduun is i / t
to^ddcr with the haill urittift qVvpone tbi
fTttoinall dittay is foundit and .vpet iulhe lli
said James Gordoun bis depositiooea Tli
tua l*rez of hoimeng qr'by he was dcnuiiei
rebel I Tlie Trez of mtercomruoning qr'by a
ye subiects war inbibeit to iniercomiuoiin will
the rebelUs And y'ut repeittis the actis
pMiament Ja. the (yt^ parbamento 7« cap, 9r,
Jacobi sexti: par. l, cap, 21. And par. 19|]
cap. 144, in anno l/iOi ^Quliilk war tin
groundis qr' Tpoun James Gordoun was pan
nellit and accuset and nocht w't standin;
y'of clenget And y'foir desyrct that my loi
.justice wald oyer grant present proces or
he gi-ant or int^lyne to on^ continuatiami t1
it may be with this certiticatioun that yai sail
baif iia farder delay Tpone Che sight of j%
writtis now produced and rejKittted. ^
Thejustice contioewis this dyet to this da)
aucht dayis qlk is ye nyntof yb nisiant monctli,
of December Ami ordanit ye nersones euteril
?^*one pannel this day to fynd cau'un tor
entiie that day ilk pcrsonc viidcr ye panetl
q'tenit in the former act viz. of ane tboiiBiiji4|
merkis mooey.
The persones of assysesnmmond to this day
wamit apud acta ilk persone vnder ye pane i **"
s^m m'kis money.
Compifired Mr. Wm. Gordoun appeirai
of Strain che and become souertie for euirie
ye said Alexander Irwuig of Leniurk.
Mr, Robert Reid bur£^ of Ab*d' for enti
of Alexander Ranerman of ELsick and Mr«j
Matbow Lumisden.
Haiie Gordutm in Glassach for en trie of
John Ogilvie of Glassacbe.
Mr. James Cheane wryter ffer cntrie Hf
Goorge Gonloun of Tilliechowdie and WiDj
beaiounot' 8c!»elhyn.
Adame Abercrcmbie fcr entrie of Hector
Abercromhit» of Fetterneir his brutlier
J4ime& Seatoun burge^ot Aberdene.
Robert Banermafi in Elsick for entrie of
Slid tJhairk'S hteivu) buige.«4 of EdmlMStirli [i
Aberdeen] the &aid nynt day of l>eoeiiiJ
lostant*
^
US]
mpon a Procem tf Error.
CuRU JusTiciARiE S. D. N. Regis Tenta in
pretorio ile EdV nono Det^bris 16.05
Per Maflr'ros Alexanttrum Coluile de Blair
eC] Jacobum Kobertoun adnucatum As-
Bfcjsores Justiciario John Eric of Traqiiair
Dauid Erie of Soutbeak Arcbiiwld lord
Lome.
Iniran*
AssYSE OP Error.
Alexander Irwingy of Lenturk.
Alexander Banerman, of Eisick.
BIr. Mathow Lum'uden^ bnrges of Aberflene.
Johm Ogiivie^ of Glassiche.
Wm. Seaiflun^ of Scheatliyn.
George Gordoun^ of Tilliecbondie.
Hector Abercrombify of Fetter-neir.
James Seatoun^ burges of Aberdene,
Charles Stevin Utster^ burf^ y*.
Alexander Abercrombie^ of Birkiaboig.
George Gordaun^ of Newtoun.
Alexander Le'Uhy of Duffus.
Dilaitit of ve vilfiill errors committit be
Ihame in ye clangeing partiallie and wilfullie
of James Gordonn sone to George Gordoun
of LogyaltouD of intercommoning with Alex-
ander Leith and Nathaniell Gordonn rcbellis
of je north.
JPerfAFar.— Sir Thomas Hope 4i Craighall
kny't his Maiesteis Aduocat.
Prolocutortfor thepanntl. — ^Mr. James Baird
Mr. Thomas Nicolsoue Mr. John Nisbet.
My lord Aduocat producet ane act of spcreifc
counsall qr*by Dauid Erie of Sonthosk is
no'iat and adioynet to the asscsso*rs fiirineriic
appoyntit for assisffiig the instice In the prorrs
of error dei)ending befoir him daittit thciucht
dav of December instant vpone the pn>diictioun
qr of .and of my lord of iiikiutheaik his persoiiall
p'na and acccptatioun his uiaiestcis aduocat
atkit instnimentis.
^' The persones enterit ypone pnnnel befoir
nolat askit instrumentis of y' entrie this day
apeciallie Alexander Abircrombie of Hirkin-
Doit; George Gordoun of Newtoun and Alex*
ander Keith of Duflus and protestit for ye cau-
tioneris relief.
My loi-d Aduocat befoir ony fanler di8])utft-
tioun vpone the dittay nrodncrt and red, pass*
fra that pairtand article y 'of* wilfullie' » pro
'Jocoet tempore' And dt'cl.aires tli:u he insist!:*
only yjionc tliat vther pairl of y o ditfay «|r'by
the itersones that war vpon James G<»n1on('s
A.D. 1681. [114
Mr. James Baird for himself and in name of
ye rest of ye pannellis prelo*rs protestis that in
cnice my'lerd aduocat vse ony fanler prolKi-
tioun be writt aganis the paniiel for proveing
of yV errors nor qu hat Mas producet at ye last
dyet that ye samyn may be sene and consid-
deret be ttiame befoir his Tp propone ony thing
y*iii)0un.
My lord Aduocat declaired that he vsed the
writis producet the last dyet of yis proces and
now repeilted be his lo' with the actis of pTui-
ment q'rvi)ouii the dittay is foundit, for ye fall
verificatioun of the dittay.
The pannel declairis that yai accept the as-
sesso'rs no*iat to his maierfiteis justice w'thout
ony objecti(»im that may be propooet be thame
in ye contrair.
it is alledgit be Mr. James Baird for ye
pannel that ye dittay is nawayis relevant to. put
the pannel to ye luiawledge of ane assyse for
ye enour lybeilit Because it is nnther snb-
sumet in tlie dittay nor proven that the pannel
now stamling in judgment hauc acquit the
former pannel for private respect be faTor
or be partiall meanis w'tout the qlk war sub -
sumet and provcin the dittay is nawayis rele*
vant bcsydis that the act of parliament maid
be king James the thrid of eternall mcmerie
gois vponn the same groundis viz. the ancht
parliament evin so the same rewle is kdpit
and hes bene keipit fhir many zciris by gane
w'tin the kingdome of England Albeit for j-e
maist pairt ye Kamyfi dois oecure in civde
buflineH as is* rioir be yo t\ientie ane statute
-maid Iw kinjr Henrie ye sevint in the cllcvint
/.?■>! r of his re^ri'nie .^nd be ye thrid statute
maid be king l-fcnric ye aueht in the twentie
thrie 7%-'ir of his rigi me and be ye twentie
Hve statute maid be ^uenc Elizabethe in the
threttenc zeir of hir rigi'mc be all thease actis
and statutis the grand jure hes only power to
try and cogtios* give any of ye first jure had
ressauit any sowmes of money rewairdis or
promeis ot guid dead done to yame setfHs or
to any vther to yair beliuiff for ye verdeit and
na vther wavis This is Ivkwayis clear be ane
statute maid in thedayisot'Edviarde thethride
in the threttie lour zeir of his rigi*me that ye
gi'and assyse q*l!v is our fyvc and tuentic hes
only power to cognos* and try giue ye first
assyse hes \ytne br\ bit as said is q'lk being nay'
qualefeit nor prcvcin is nawayis relevant
igitur, \-e.
It is aildtl be Mr. John Nisl)et that ye dittay
sua far as it sultsuines
IS nnwayiv rrMcvant ni
assyse ar pannellit for clangcing yovuiil Jsmics ; g'nVillie that yrpnnnall lies acquittwilfullic and
of intercommoning and conference Mittinglie i te[nfTnriouf;li(; be partiall mennis or favor And
vith the rebellis and insistis ng::nls thame us - condL'scv-ndit not vponn any niranis or niotivi.'S
haifing clanget the said James wilfullio par- i of pnrtiuiiiie nrf:i\or nor vpoun any practizer
tiallie at the leist tenicrariouslle and takis in- i or rorrujitcr and iiidr.cer to partialitie nor be
strumentis of the reiding of yo dittay and of Iqnhais favovc th;«y have bene misled without
the writtis producet be his h/ at ye last dyet ' yoqiihilk t-onduHcendiiiir ye gfntTtilitie of
for verificatioun of ye same viz the act of par- •-' *' -■ *■ ■■■■ *-.-:.—
liament king James the tift par. (!, cap. 97,
Jacobiti, par. 12, cap. 144, with ihe drpnsi-
liones of James Gordoun and the I'rcs of in-
lercommoning.
VOL. Xi.
ye
IS inatrpt qiiiu accMisatwrius Libellus
ceitilndin" •i()nnni!t!-. ( t It-.indus venit. Battan-
der regain sj'\tji ; ctoiuiips liMlistas de forma
libell cviininaJis ; vi le|^e in cnnsis criminalibns
Cod. dc accusationibuy ; ct eximiaglossa sccreta-
I
115]
S3 CHARLES 11.
f ium ?bi forma libelU criminalis proponitur ; ct
in crioiiuibus non vaj^andum : Lege decima ff.
tic* flolo malo ^* et accusator non debet vagari cuip
eAistimatiuDC alia iu discrirnine, sed certuin di-
cere. Lege si in reum ; ff. de rei vindicatione et
in criuuiiibus coiuplexis et coirelativis vt adul-
terio >bi adulter et adultera et repetundis et
barratria et corruptione judicis per sordes vel
^ratiain uberiorum |ieue et comiptus correlata
aunt, uon tautuiii locus et tenipus ezpriiuide*
U.'nt ill lil)ella, sed et persous cum quibus com-
niunioiie criiuinis compUcantur rei Lege li-
bcliuruni tit. de accusationibus ut io Ibrma li-
belii de corruiitioiie judicis. Amideus — De
Custello ostcndit in tractu de Indicatu. Thairf'oir
Being ye crime quhilk. is the subject of ye law
is not errour simplie quhilk is incideot to ^«
uiost iniioceut and iu law and seoce importith
n.'¥f;uilt bot yewilfuU depravatioun of assys'ors
be favor anu partiall meania And ye assys'ors
ar to cognos' and delyuer not so much of error,
as of ye qualitie of it qubither partiall or wilfull
be lk?or or partiall meanis A g'nerall as-
aumptioun of fa?or and comiptioun cannot pas
to ye knawledge of ane grit assyse And the
pannell cannot be prejudget of ye defence
quhilk wald result pregnantlie vpoun ye con-
descending of yc practizeris and meanis of
partialitie and motives qr'with ye pannell hes
bene misled viz. Thai ye pairteis consescendit
vpoun be partiall meanis or practizes and favor
to hauc corruptit ye pannell was not of that
estait as to have corruptit yame nor of yat pre-
dominant favor as to have iuvaigled fyltene men
in wilfull inniquitie and to haue maid tbome
conspyre in the most attrocious and impresa-
mable cryuienixt to that a^nis ye Uoly Gost
quVith It is alhnost coincident viz. a wilfull
opposcinp^ God and conscience quem Cicero
an{)ellat ^' Drum Tel sultcm doroumDeiquonibill
divinius'' ]>c OtBciis libro tertio. And all de-
vynes ^* vuluntatem Dei revclalam si non mate-
naliter saltern formaliter ct interpretative quia
iuud cuuscientia dictat fcub ratione voluntatis
^ei dictat" Amesius de Conicientia cap. 4.
Ai^auist ye quhilk it cannot be presumet nor
rclevantiie aftsumct that any man erres be fa-
vour or partialitie without some apparent or
lybellit motive And the cousonancie of our
biw with ye statuttis of Ingland vrgt^ be Mr.
James Baird is constant lie }eact of parliament
anent ye uuth uf uss\ s'ors that they suU nather
luk bud nor mcid 'J'lie cuuiravencing of ye
quliilk tiiilic lu'c-aicry vit be ye act uf parliament is
tiiiu/ar'tum juramtiilutn and not q' a man
del}uc-rilU accoirdiug to his knawledge albeit
et-roiiiouslie Ik'caus in luw and the cnstome
of all UHtiutit-s the cunciptiuun ami ineaneing
of ye o:irlii' of juii;^-esis only ** (>uo(! jtsdicabunt
U(»u quuil jusiiiis ci iiiulius austiticie, sed quod
justius et mdids ipsis visum fuciit." Lege
J 4. Cod. de JiKhciisi.— " lit jud<*x tcuetur
tantum bi scii nttr I'uliit, (|iiia in bciontia nmlta
versutur iu \ita.'^ Ciceio Lib. 4. Acadeuii-
caruni quL-ktionum.
Secuudo, the dittn y is nawayia relevant iusna
'^i^'uii^ru tit* ^iil^ul2 aud timerarious
Proeeedingt Bgaimi Ales. Blair and otheri, [1 16
delyuerance and depravatioan of aasyseowria
be the material! error and allet' inniq^uitie of
y' verdict Becaus in law it is a paralogisiDe to
argue from errour and ignorance to cry me and
from the inniquitieof y e sentence to the iunii^uitie
of yejudge ** quia aententia potest esse Iniustm
ex ammo ^roferentis, et justa ex online etoansa ;
et contra justa ex animo sed injusta ex caosa:
Decret: Causa secunda quest tertia" CanoiM
62. And error argueth ignorance in inielUetu^
and not in justice in wfmi^M et voluntate, qa«
maleficia distinffuit non autem exitus et Te-
ritas. Lege Divi Hadriani ff. ad Legem Cor-
neliaro de Sicariis: Et non omnis injuitum ali«
quid dicens vel fadens est iniustus. Arist Lib.
5. Ethicor. Cap. 6. Et qniupiam ex iaten-
tione et electione iniustum tacere reddit aln
quem injnsturo non autem facere preter inten-
tionem et per accidens sed ignorantiam Con*
clusio Divi Thoms in secunda quest. 59»
Articulo secnndo. Et cum Judicium ait ag-
gregatum ex actu voluntatis inclinaotis ad
recte Judicandum pnidentie autem seu Fationit
determinantis. Thomas in Sa Sdce quflBsL 6.
in couclasione articuli primi. The fatalitie of
errour quhilk is incident to ye best and is ana
naturall eclips of reasone occasioned by ye in-
dispo»tioun of organes ouia aliqui habent iIp
tionem depravatam ex mala habitudine nakura
Thomas 2f 8doe queest. ^4. qualefeis not releraDi-
lie wilfull perversues and partialitie of ye will
Becaus in law and be ye universal practiqua
of all natkmes and tymes the error of judges ia
not a cry me bot sordit and partiall depravatkron
is only pnneischalde Lege 12 TabuWum xe-
poirtit by Aulua Gellius liiiro secundo noctiinn.
Cap. ]. Lege Julia repetundarum ff. et Cod.
ad Legem Juliam de repetandis. Le^e Con*
stantini Cod. de piena J udioB qui male jndicabit
Novella Justioiani et Litigatores in exordio
Litis Indicium § Si quis autem ex Litigato-
ribus, et alia Novella ejusdem, ut judices aua
quoque suffragio dant $ '* tii (j^uis autem gqok
stitutione Valentis et Valentiniani Lege Tni*^
versis Cod. ubi cansoifiscalesagauturcousti-
tutioue Gratiani, Valentiniani et Theodoni
Lege Judicis Co«1. de dignitatibus. In all
quhilks lawis corrujUM depravatio deprtd^tm
J'urcu ichelcra and iu the cannon bw simonim
passim ar ye crymes duiy puneisched in judges,
and abjured be* thame \\ ith solempne concep-
tioun of oilhes at yair lulmissioun. NovelU 8L
'* ut Judices sinequoquesuH'racfio" Cap. 17.ft
Novella 9. Jusjuruiithnn quod prcstatur &
his qui iu Adiiiitiistr.nioiic sint, Demostiuea
contra Dcniocritoin de Junmient' Judicuniy
the contravening of quhilk aitlics inakis yania
lyabte and not a involunter ina/Tectat error
quhilk baith in law dlvinille and philo'fUiia
is excusable, and without a gros^ absurdititt
cannot found ane dittay Arist. Libro quinto
ethicorum, Cap. 8 *' Divut; Thomas, Amesiiia
et omncs casuists de coiiscicncia crrante quia
judex tunc litem suum facere iutclligitur cuna
dolo malo in fraudem k^is senientiam ducH
Et dolo malo videtur hoc facere. Non cdib
sententia iniusta est sv;J ki euJtus arguatur
I IT}
UjioH/t Prteu of Error.
A. D. 1$81.
[IIS
eiu* rel gnitia vcl InimickrcE vel sordes*" Leg*.
15. IT. de JuUieils *' Et pejeriU tHnttim cnit
•cien« fiiUil ^* Lege 26 ff. de Jureiurandci," Kt
formula Jurifljuraadl otini erat. 8i sciens fiiUo
<lie»{)iter me boni» ejimt. Armochiiti! Consilio
891. **• Et Jurtices debent omxinie p^mnrc
eonsctentiain meiilift »up/* Cicero pro Mibne
ttjiassim: et conscienlie Hiam erromtn di-
€4iilur sequi quia ohli^nt ; otiities causuiste de
conscientm errante adfu tI voluntas disfordai is
a cofiscicntia eUurit errante nmfa sit et iniiiftA.
duia quirqtiid est contra c(»n»cnentiain et rum
«r fide peccatum est ad lloiitano« CMp. 14.
Thomas 3 quest, 19 articalo 5. Be the whilks
alleg^ations it is constant that itrnomncc and
error in judges is nocht ane cTyrne Kt Im-
perilia et itfiprudentia f»er quani judicen litem
iuam^aduntnonest inaleBciuoi In^titutionlhus
De obli^iionibiis quag ex qua&i delicto nas-
eumur, ^. de oblig^atiDnibiiR H actionibos. l^ege
6. ^ si Judex. Et leg^e 6nali de variis et
•Xtrmordinanifl judiciis and thatformall iniquitie
Aod partialitie cannocht be aubsumet vpone
aentcnces maieriallie erronius. And speciallie
aganist the aasysors quba or nocht judges
profiteiites MfitMin ct qui idco tenentur as-
•uoiendo officium ex quasi delicto. Pbarina
foeat. J02. Num. $89* Bot i>edaneous and
HfitneiBuiif Judges require! to serre the king
iccoinling- to thair conscience '^ non ha-
bentes Jurisdiction em sed cognitionem tantum
camque facti taiitum cuius iguorantia non €St
bta culpa nee temeritaa nee quasi delictum et
interpretatio prudentissiina etiam tfallit'*if. De
Juris et lacti tgnorantia Hot speciallie in Ibis
ciice the alledjTct ioiquitie of the seatence
fllMflttllit eaiinociit qualifle u ilfuU error agnni^
ttfi raitilroeii now panne 11 it bein|r all hottest
Sentilmen aclcno\^lpdi^it be rne lord aduocat
inuelf quha hcs gevin pruife of yatr loyaltie
ia y« lait disordourev of ye count ne And bes
Ithes^reifaDd Tiber com mission eris for
J tharoe And cannocht be presumet
" iodangcrit tharr honor and est ait be a
wilful! acqaitliuop of ane poore inconsiderable
man in quhouie ihay had no interest and
2abome for the maist |it* thay had ne?ir sene
Q respect v^of s^ing ** in dubio dolus non pre-
sumitur scd ex itidictis perBpicuis probari coo-
venit^'Ub. 6. Cod. de dolo malo cheitlit! aganist
Judges, 'Phari. que«t. 89 Num. H, Et omnes
docUircs in Lege 3. Codices de officio Civthuin
Jodie uni tn verba non artritramur. And in
the present caice all presumptiones exclu^
«!*• of dole ar ooncumng to the qua-
Utic of ye pannell baiting bene hitherto
hotieat and uuMU^pert g^ntiJmcn The qq^htie
of the imirtie acquit quha could nayer pnie-
tize nor dc^enre fauor The number and pod-
aonancie of the haill pannal in ymv acquit-
ting a man in quhouie tuay had no interat and
j*loir can nocht be nresumit tn have conspy red
wHIiout oity cause m wronging y^r coiiMn«uoe«
^tliev hail fyM t ' vine moir
II rnc of sliucht : quhilk
'the taw and in allMiM>ii..tLnii i* uue maiirt
prlgtiiuit prcanjiiutiottn ** quw ccnAuiv causa
^essnt delicti pm umptio ; et dolus non pr
irnintritr vbi non adest Yucrnm.'^ Crtivettt
Concilio 175 et Concilio 319, Baldiis Coneili
25, volumine secnmlo. *" Multo ininus fh
damnum sentireinr** Pl^an. quest. Hi. mi
44, H is y'ftnir conehidit '* qund fran« p<ite
esaefine pena sed penn non sine fraude ne
of>c*!tBc debet iis qnonim seut^ntla fuerit solut
et resrift«^ nisi Cfmvinei potueriut vel iniqn^
animo jndic«<sse vel aliqimjtrmtia et rupiditaU
dcpravari." Decretal, Cju J sn ^> quest, 6» canon
3 k ** vbi glos^a *,{ couvinci ar^umentatur quo
contra judirem malum non prestimiturquan
vh sententia iuiqua H rescissa n\i Wm con-
vineatnr et propterea qui dirii judicem dotd
aliqiiid egisse probare debet,** Phari. quest*
Un. num. 3«1. vbi ex vertio evident
I^gfe siifilus, ff, de juiliciis cf»lti^tt quod ad
judiciH dolum prohandum non ftuA^icinni pre
sumption^*^ nisi sint evidente* «•« concUidente
et non presumi ev tacti qfiJilitjite nisi sit 1
Tt nulla paUiati<me exeusavi po&iit."
Num. 35. ** Kt judex errando eiinm in jup
non in dolo sed lata ctilpa esne diritur le^**
ff. de verborum signitir^atiooc. Phar. que
111. num. 473. '* Vhi astrurt sententtituti
suura innumerifi testimoniis dnctonim ussoren-'
tium quod licet ex jiidicts ignnmiitia arguattif
lata culpa IS on taroen arguiiur iloias «*t quo "
nee etiam dc^los presumntus itidiiciuir niulttl
minus punitur quia in cnminalibus lata culp
non eq^iipai-Htur dolo. Phar. quest. R4. § I
nali. Num. 21. Phar. quest. SO. Num. Ifl
Et omnes doctores et de jure el tyinsuetndini
judicis non sic iudicantur desententiis per im-
|>eritiam legis sed de dolo et l>arratrm. Bal«
du8» in lege observari § nrofiacisci ff.de oBioil
pro consul i> -i i-.r^tr. Ilyeronimu*; Jachimu
Coucilio i\ u vbicitat Batdum Ber
lasium et or : stores in materia si iudicatiil
tenentesjudicemnonteneri de imperitiaet control
judicem siju«Jicandum non sufticete presumj*-
Clones sed probationes sole clatiores precipue vb
cessatcommoducn etftilitas. duo ca'?u senterttii
iniqim non dioihir doliMui: ibidem num.
Quia in qualibct materia considerari ileb
potius causa facti quam factum. And llti
act of parliament 1475 puneisches only fals i
sy^rs as the nibrik beiris And {{rtioranee iti~
law can never impoirt falsett " ipiiii tnlsum
non potest esse sine dolo." fr.de dolo malo.
And the act of parliament cmly puneisehcs wjU
full acquitteris be favore or paiii^il meanest
and temeraritie in the ad of parliamont i^ takei
copnlatiuelie with wiltullie as the dif;iunctiv#lj
* or^ it ever interprejt quhair yair sould eiisevf |
vtherwnyis ane inhumane ahsurdHie aujj
temeraritie is only puneischablo quaiulo
veuit H dolo malo. Phar. quest. 0<J, nun
63. Alioqui temeritas faeilitatis venmrn eoi
tuiet et peiia nou potest irrogari C ad «enatua
consultum m Tnrpilianum et ori
siMuper c^nsideranda est si enu Ao%
lion f«t delictum. And (t
mniestie «|r*nitO the act
Intive i|»tmeisc^c0 only p<iiu
d^eravit ct dig«rai(M» {ivrcouvK
33 CHARLES II. ProceedingB MgmnH Alex. BUiir end others, [190
foundit quiiairin it is said that natie presume
or tak v|>oiie hand to recept or intercoramoun
&c. For heir * or' does not seperat wordifl of
dyu's senn* in sua iar as to presume and totalM
▼pone haud ar all aue And in the strict accep-
tatioun of ye wordis ancht to be interpreit da
dolo prcmediuito ct apjiensato non dedolo flim-
plici. As gif ony man knawingfthal inter-
commonin;^ with rcb<>llis war a cryme Bochl-
with;»taudingy 'ofhe wald attempt to committhe
said crymc thinkiu*^ hy i»ome vtlier e?asiouii to
eveit thepuneischment of ye law and to schaw
clcirlie that y^e said word (temeraritie^ in the act
of pai'lianicutmost be that same with witfali
error and partialilie The act of parliament ia
allcad((ing the caus of the |freat assyse vi|pe»
only tills that gif ony sail haif acquit he wiii'aU
error or partialitie and speikis nathing of teme*
raritie Uuhilk wordis of the act being strenth«
eiied be therubrickof this act and the corooaomft
law auchtto stronthen and interpreit any sub-
sequent wordis of the act ordane<l be thesainjia
in respect of thaise wordis wilfuUie or partiauie
meines conteined in the first end of the act.
Tertio it is allegit lie Mr. Thomas Nicolioee
that the pannell cannocht go to the kaew-
ledge of ane assyse vpone the dittay m
mpect the samyn is nawayas relefant as
it is declairet he my lord aduocat '* in in-
gressu Litis*' viz. that his lo'insistis only vpone
this dittay as it Ivbellis the |)annellis as temere*
rioiislie or wilfullie to haif danget James Gor-
doun the pei-soun first pannellit frome wittingp
intcrconiinoning Because the dittay does nocht
rdevantlie subsume fra the act of {t'liament * de
*■ pen a tcmene jurantium super assisam' in sua
far as the said act boiris That in ye accusatioiiB
of ane trespassore nottour and niaiiilest knaip*
lcj;re beinpf had of ye trespassour Than gif it salt
happin the assyse to clenge the tresjiassore and
gif it sail be Terified evidenced to ye assyse. of
error that ye p^tie acquit was ane trespaiMe
that than ye acquilteris of him sail incur 1^
pane of * tciueri jurantium super assisam' Bel
sa it is that ye tUttay subsumeing that ye pae*
nehs assoilzf ing James Gordoun fronie witting
iutercommoning dues nocht subsume that thay
assoilziet ane trespasser and cheiflie such aee.
trcspassor as qr^by nieanet be ye act of p'l»»
ment And y'lbir it is nocht relevantlie su^
Kumet fra ye act of pMiameiit de ptna temer^
jurantium That James Gordouu being ane
uaiked wiitintr inlercomnioner is no trce»
passor It is cleir out of ye dftinitiuun of wit-
ting interconimonin|i;; allegit be my lord ad*
uouat in ye dittay viz. that allenarlie kna«r«
iiig that the p^icis with q'm he intercommon-
(id warrebellis lie intercom inoned with tbame
iior to niak ony intercomiiioning a eryme
and such a cry me as be the lawis of the cuntrey.
ar puneischable be death Nocht only moaft
ihay be prcsupponet that ve intercommooer
knew the rebeJiis to be rebellis hot also that
knawiiig tlianie to be rebellis befoir the aft of '
intercom moning cif the tyme of ye same he
had a frie will and intentioun to iniercomniona
with thame For of the law of all
119]
y'foir in respect of the cubrik beiringonly falset
and that in law ndirica dat interpretationem .
statuto. Mascardus de generaii interpre-
tatioue stalutornm et ostendit mentem statueii-
tiom dicia conclusione. And that statutes ar
to be interpreit nc»n secundam rorticeui ver-
borum l>ot accoirding toUie rubrick and vni-
uersall strayne of law and reasone precipuc
quando se([ueretur absurd urn. Mascardus ibidem
<Sadem questione temeL*antie. Thuir can never
be interpreit ignomnce qolitlk in law and sen's
can nevir iiupoirt ane cryme quod consistit
ex voluntate et ad'cctu et dolo malo. As is
constant be all the cnmiiud edittisofye law
in the 27 and QQ buik of the Dip^csts q'in the
hiiili matter of crymes is contcined and almost
in everie title and everie paragraphe dolus
mains data opei-a cnimus affcctus |)ro|}o&itum
volunlas i'raus ar re qiiyret and repel tit,
Itistiket be Mr. Thomas Niculsonc to the
last alleil^eance proponct be Mr. John Nisl>ett
andchietiiciu furtiiicatioun of that poynt y'of
ancnt the interprctiitioun of the particle (or)
to be vndei-stuid as ^i\' it war the particle (and)
and that temeraritie in the act of 'parliament is
to be conioynet with wilfull error and partialitie
It is allcii^et that nuther in law nor cvin in the
actis of parliament thamesc^ltEs is the saniyn
ane impropriat signilicatioun stran^^e or nucht
fiudabic nut in l;iw hot in. ye contrair for es-
chewing of civill danf^eris in matters of guidis
or heritage 'i'he particle (aut) or (vel) is in-
terpreit and tane for the particle (and) et As
chicflic in Ltge 57. s. 2. ad TrebL'lli.'mum se-
natus-coiisultiim |Kn*peto de te vxor charissima
turn inorieris hereditateni meam rcstituas
filiis nieis vel vni rorum vel neputibus meis
vel cui volucris rcspondi (inquit jurisconsultus)
inter iilios siilistitutione commissa factum
videri. And yit be ye woirds y'of to witt * vel*
thair was powm" gevin to l eve the heritage to
aue of ihnme us also Lege CAh ff. de verb^rum
significHlione in e\)»res tornies sepe ita com-
juiratuni est vt coniiincta pro disiunctis rccipi-
nniur et e contra disiuncta pro coniunctus nam
cu^n dif'itur apu<l vcteies ai;-natorum <^ntiliiim-
(juc pro separatione accipi ac cum dicitur
super {K:cunia tnlela ve sua. Tutor sepa-
rutim sine ps-cunia davi nnn potest, iind also
liege 't. Cod ice de vcrbdruin el rerum sig-
iiiiioatione ilii in«liiis itaque nobis visum est
inquit imperator omni huuismodi vorbo citato
coniuiK'tioncin aut pro et accL'pl vt videutur
copujatiuo inodo esse pn Inla qucmadmo-
dum in iiiterdicto quod vi sut rlani coniiinctio
(aut) fM-o (et) apjKTtissiiii;^ est pouita. In q*ik
cait'ts for civile res}H?ctis ll.-c inipmpriatioun or
the w ord (aut) is in vse Ai;(l \ airfoir far rather
aucht ye samyn to haif place in this caice
qr' wiUiout tlle!^anlyn the act of parliament in
the wordis of ten sera ritie can nocht reosaue ane
iiiterprptatior.n accctiniing to law and cqnitie
And yat ihe wt>rd (^r) cvin in sindrie aciisof
p'liamcnt dois not so sep<rat the words bctuix
quhilk it is put as that thay snuld have (htitrent
sens' in substance Jt is cleir oat of the act of
^'i;a.n<mft ^^^ qf» ^^^^^ ^q g^st dittay waa
ISl] uptm « Pr&crn of Eirer*
coDtrollablie observct and inaiitcnet l»e aU
'i* wry ting ^potie the caicc rif comuiis*
A.D. \6%\,
[ISt
of crytnes autl luvw tiie same are pu
BewcJKwble ' It k cletr iliat in cnmes ilie pu-
B«]«cbliient qr^of is corporali quhld<ler capitall
or not l*liat i>c»/t^ that is ,the frie will and
itit«uttoart of ye eomroittcr ia r«qi»iret As tfi
the grittesi of all crymes in Crimiiie fese
iiiaie«Uti$ per totum tituUim tf. ud Lep^fTn
» JuJiam Maiestaiiit ihair is ever mtuiiuim
maid of Dole Bot chicflie Lt^re 4 . foc/mi tUuh
' BDeut supplting of reirellis q1k caice in the
same ivith oures And rnair iVi ciusve opera
dolo main Uostes popiili Hnnmai couicatu armis
tdis eqiiis pccunia aliave qua re adjuti erunt
ct nisi iniervenerti doJus in cofiinu»&icne cri-
mrnis reos onlinarla pena non est punicnduij
Julius C'larus Practica Cltoitiiilifl f . tinali quest.
8-1 nutn. 1. Antonius Gonilsius variaruin resO'
lutionuQi Totno. 3, De lioraicidio nuui. 13.
€*rimen eiiim commimutu «iae delo quanq^m
itl sit materialiter quod revefa es§et erimeu si
ad fuerit dolus in quo consistit forma et essentia
criiiunia cosiissi qua enminis Me tamen doli
CDmmissum coaiuittieiiti uti'quam imputatur
dnUm attteni adeiie dicitur si voluntas eonimit-
leodi cniiieti vel d^ietiim reus Jiabuerit, Lege
^.Cod. dcHicani$ ibi Ri quis sine animo occi-
^IpMli occiderit eum nun puniri. et Lege 14. tV.
^^nr/i 11)1 Divus Hadrianus in hec verba
HBRripsit in male ficiis voluntas spectatur oen
txitiis, Tbe reaaoiib qr^of is ge\iii lie Fhart.
que«t. 87 inspeciione prima num. 5, Quia
sine dolo et tinimo di liuqivenrli delictum tion
Qommillittir et^ ne€ pnniturf non commi^lUur
iiiquit quia animus et proposirum distin^uunt
mabilcia et in dtJictis et malefk'iis vttluntav
•pectatur et non exilu"i. And uTuiidis bimselff
vpone expn^'s JrnTis*as Lesfe 1. § 3. If. nd Legem
€ioroiiliAm de Hicariis Ibi cum qui liominf^m
si non oecitlcndi animo a<Uiiistt absoh i
k*et \f^^^ ^I3a, in priudj»io f^^ furtis.
ibi qui iniurie causa jaooaiii elftcgit qnanivii^
iode per alios res amoti gust oon tcnetur furti
nam maleficia totuntas et prepositum delin-
quentis distingutinl; et capile ebm voluntate de
Miitentia exoommuniiUktioum cum vohmiate et
pfopof^ito mrilolicta distinguuntnr excommuni-
cationi.4 senlentiiKm non inciirrit qui e\commu<
nieuto in his qui ad a1i«ohtti(mem vel nhas ad
ammse »«dnrrni pertinent in loctitioue pai ticipai
Licet etiam alia %'ert>a inridentc!r intrrponat.
ita sentii* 3iiutM:hiu>« de Arbrtrariis Judicium
t'iiHui^ii. num. t» l>um ait veram ei divinam
«Kie omnium sentontiam iletirtum *ine dob* non
puniri And th.it mvca du rrquixitione duli in
«fimmibu«i is so inlair^^cd be all tlie doctors
that Ibay IkjUI it mm quhtifr it is protiitit l»e
ooy statute simplV 'I'bat \e eommitter of the
cry me saH bc> puneisrhc-t m.* death. Etsta-
liunm intf^lbi^ecidum si delictum sit dulo com^
Iftissum qnii* sitatuia reeipiunt intiTpretaiionem
passiram a Jure communiuequis damnum in*
liebitc patiniur. glosea 10, l^ge. 2 Cod. de
Nox. act. Jas. Lib. in actinmbua num. ^6, if.
l>e Litem jurantia Ibi tent,. n!e cou-
lrarimi» Idem Jas, in ru^ tie lege
nam. 19, el iO. Ant. Gom. Varioniiii reao-
lutionum Tom. 3, Cap. 3, onm. 15. Paul
de Cas, in rubric. Tit. ff, dc lege num. J9-
Alexander ConsiJio 140 num. 4, toIh. £» Et
per tolum consilium vbi congnJuit eum qui
[josuit oHendiculum ad feiie&tram c&iiaa ca*
|)feiMli fbrea noctu aecedentes non teneri de
ocdso fd contigerit ahquem vol en tern per so
vestram ingredi mediante oflVadicitlo precipi*
lem Irtpisum in lerram et mortuume&«»e uoqiioA
qui oliendiculuui posutt anuiium occidendj \
habuit. Lt coui>jUo 38, ti>I lo uht con
Itiit locum case Jure repr^ > in suo
e^^iiiuihuH uoo olmtante - 'taute ad
sueoes!»iouem cognatos proximtores in grado
quia per hoc non excluditur Jus rfpreteDta->
liontK. Tira. de Jure primogenilorum quear,
40, num. 2^, el B9. Pbarioa. de dehctta
carnis, quest. 345, num. QJl, et num. 159.
Alias SI statuta interpretarentt»r sequere-
tur maximum absurdum : Nimirum quod esor
homicidio casuah quod sine aliqiia cul]ta con-^
tigerit quis decapitaie deberet quod ecset vaidd
Injquum. Idem Paiilus m Lib. 3, €3od. d^
£pi.s. Audientia Jure secundum iua com-
mune statuta judrx interpretare potest quainq'ia
ea serfarejitiuverit per eius emm Jutamenluat
uon loUitur arbitrium quod ei datur a Jure muk
muni dictus. Pauhta in lib. 3. Cod. exqui
Caus. in lamia irrogatur vbi ait se istani causain
habtii^e de tiioto et i|uendam evasi^ise a pcB»
mortis imo verba skituta smit potius impropri*
and in civilibus et etiam aUquando pro super*
liuis Liabenda quam lerant sensum jure com*
muui contrarium et pafiatiir quis damnum in*
debite, Joannes Tugona singular, suo 16 mini*
7, Hipp, de Mar. singulnr. suo 640 num. 5^
Ergo niulto inagiii in criminalibu^ ne quia
damnum vite indcbitum eiusquc dispeuditmi
pat ia tur.
Turn autem maxime stati^ta crimifiibtifl
|jcnam capitalem imju^n'^n'm viinnJiciter sine
vita do!i meutione i » a Jure
comrautii teeiperedt^i , i»"llii:antur
mode crimen dolo sit commissum, quando sta*
tuta hi^ verbis vtnn tur, ne quis audeat vel pre-*
liiunat, verba autem audei^ vel presumere no*
turn animi et voluntatis presupponunt, PhaH.
in quest^e 87« num. 33. et audere vel pr«-
»uriiere ex alicno ^ecunda t>arte pru^sump*
tionum Num. '^ nihil aliud stgniHeant
quam prt*«»um|»4ive et suprrhe aliquid agere att*
ihoritate pi .:< niptn sujKTtom amho-
ritatem ; * clium et supercilium ia
animo et lo.iiinuit iiiibtnt. Ita AlexV Coa^
<filio l!23. num. 9. vol. 4. ifor ony stafule er ncl
^9 fxrmpt* e,rQtta The act nf nulJuiTaeiit ini
anno 1592 aganiH inter* . bt'iring*^
tliaiseword^ That naue p i iik'Tpone-'
hand ayer most be u'idenitand to speik of'^
crymej* committed an mo tt pntpoUlo tom* {
mttteutii or ell is the said is aetis sal be eoa«
trair fo the commoun taw that puneischet
na ci-ymes capilallie bot crymes eommiltit off ^
wilK and tniiutioun And also ye saidis actiy
sail be conlrair to thameselms and imply
aue oontradiottcmii m tlie commitler of the
Hyj " 5$CnARLlSn. Pt^etedhgiagdhntAteM.SUiraniotheri, [Ifl
€ryme ^f tbfty tta\ he vnAlnUud of theaee
^uha coitiDiittis aay allegit t^r^me " ffiDe
proposito et animo dttincjueuJl'* quimo zit thay
a^ieik only of ibtas« quba sail presume or tak
rpone h»nd to commit the crynie That is quha
conl#mpniikijf the ^upreame amijoritic in vair
myntJis Qttempllito doein the contrair or ye
■ame and ta (wrtietrat ye «ii^rae forbidden
quhilkis lua quatiteis Ttz, to commit any alledgit
ei'yme ** sine ajiinji> commiiiendi,'* and to
cominit the same ** animo presiimptuoso et
legeiii spernente** ar oocht compaiiWe "' eotlem
tempore el actu." And nocht only of the law
is this intentioun callit doin* he the doctors
naikedlie requiret to intervene in ye comuiis'
fioim of ony crime l»ot the same is so stricllie
ezmctii and link it to thai gif be s<ime gross
i>eg:gUgt^nce el lata com mitten tis culpa quod
crimen ridetur committJitur, |>cDa iameu oriii-
Daria com mittens puniri no n potest quia puni*
endiis venirct si ex propositoatlmittniiir crimen
^uanqnam enioi in ci%ilihu& bita culpa doio
eqtujpareiur non tamea in criminal ihii^. Lib,
T* n. de sicarits. Ant. Gom. dicto capilulo 3,
Num. 15 versii ; iroo qucMl ma^iu est quamrili
hotnicidiitm sit comoiissum lata culpa, ifan.
titulo de homicidio quest. 1^5 § 1. Num. 92 et
45 Lata enim culpa non est dolus verus
Bed presumptus. Julius Clarus y dc homicidio
Nutia.4. Minochius de arbitrariis judiciis eas.
352 Num. 12- li'arin. dicta questione 125,
Num. 45* In the ^\hi1kii places the doctore
a.6irmes Crime^i sine dole rommissiini non
ordinaria sed iniliore pcna pleclendum etiamsi
mrlstt lata culpa, dolus enint in tlubio in de-
lictis non prelum itur scd semper vrget pro
reo genemlis presumplio^ ft ea actiia in-
lerpretatio fiat ne quis incidat in delictum
Math. Matbei sing, suo 110, Ja9, in lib. hoc
Jure Col. peoa vltima versa S. fallit ff, de
»ctiaoibus Bart in L. 7. ff> de sicariis et in
Lib. ti adultenuro turn ince^ta § iidem impe-
ritores, ff. de adulteriis tenet abquando in
delictis nollo modo puotri lataiD culpam et
difitiuguit iuter chmina et ddieta quis prtnei-
paliler in altermn committuntur vt bomicidium
ua quibu5 ait Latam culpam eirtraordinaria
puniri poese pena, et inter delicta que per-
•oiiam aiicuius principaliter non respiciimt vt
est stuprura incest urn et Jn nVo cast) ctmver*
satio cmn bauito ; in quibus delictis ait BartoK
L^tam culpam nulliitenns puniri. QucMiauteni
de delictis capitaliter punieudus dictum est re-
qoiri voluntatein et propositiim delinqucndi
sauo sensu est inCelligeiidura ; lia vt voluntas
•it libera et nou caacta neque vi neque itietu
iufcto; justo nitnirum qui in constautiiisrtnum
nomtnem fadere pHest, voluntas enim est
mavr oogente ad aliquid non irai-
Un uduui.hoc est non faciendum
vel tacitndum : Cnp, 10. Cas* 15* qu€»t, J a
Uccreti 2 parte Pn>inde si quls vi co«mHus
f^ ti "' iiti jiuitn aJiiTuid tecerit vel per-
«ttr riau tuuto hanetur in civihbut» et
in cuiMitii«iiii>a« } precipue in ils criminalihus
altaiyi pcriNIOftm principaliter non res-
|pn> ttOtt crimine ii«hbetur
vt in civilibas passim baWri est : per UHtoi
titulum fi\ De eo quod metus eau^, ei qu<
vi et vi armata; »ed precipue in L^ege Cics
tf. de publicis vbi cum Cetsar insutai
Creten locarcl Legem ila dixerat : tie qui
preter reilemptorem [tost i*tiis martia*^ cDtcm e:
insula Crete Ibdito neve ejcimito ueve avellito j*
cuiusdam navis ante idus martias et»tif
ouusta ex porti? Crete pfoferta vento relata in]
portum eiTit, dein iteruui post iduj* l^larcir-^
profecta erat, coniudebatur ntini contra Le;^
factum quod post idus Martias ex uisuta C
cotes exiisise viderentnr: Hesponsum socuil^'
dum casum propositum viiieri non contm
Legem factum; ideo quia relatus erat niiutx
ternpt^tate, et sic in Lq^era latam commits
coactus involuntarie autem hoc*, est concts
voluntate commissa non punicntur. Gl
Gotbofred. in dictam Legem. Ergo intil
raagis in criminalibus quoequis vi relju»to
c^Hctus ill Legem cominillit vel statutuns non
puuiunttir quasi contra statutiim facta : sis
statutum prohiliens rem mobilem alienari sub
pcna in forensem Lacuna solum habet in alienn-
dcme vohintaria non necessaria, Clarus
tiuali quest. 82. staL 2. Num. 4. sic
reccptatoribits coaciiSf recipientes banitum noii
voluntarie sed coacte quia plures sunt banii "
simul et eis erpellere non potuissent sine
periculo pena aliqiia non punitinlur. Ita
Barard. in add. ad Clarum quest. 90. Num. 46.
ibi ait tales receplatores non teneri bamlo«
in doiJio relinqtiere et recedere, Justus autem
niettts ^ est et talis qui in constantisskmom
boniineift eadere pot^t : Est terror armomm
etiatn absque eu quod arm a habentcs iis wti
fuerant. Lege 3. \ qui armati 3. ff. de vi eft
vi armata. Alexander Consilio Lib, 5 coa^
si ho 156 Num. 3. et Lib. 3. Consilio $8*
Num. 2. etiam absque ulla comminatione vel
percus^ioue ^ufiicit terror armorum. AleiC^
ander diet. Consiho 98. Num. 3, Kt
quamvi^ qui cutn armis accessit amja de|K»*^
suerit : Glossa in diet, § qui armati, et Alax ^
ander diet. Consilio Num. 5. Sufficit eiiim^
inquitdictus Al^^ifander Num. 4. et 6. ibidem,'
solus limor violenlie infereude ut sit iusti
raetus modo subsit Justa causa propter quacn
futuram violentie impressionem timere de-
bemus licet violentia neque fuerit secuta Imo
tiequecomminata ; non enim debet quis periculo
extremo sese subjicere: vnde Barard I
supra cilatci receptatores banitorum eos
fie 11 at coactoa qui banitos cunti plQre«
simul receperuot eos expellere non valentf
sine periculo. Item de Jure deterii>iu»tum
est, qutMldicatur metiLs Justus, hoc est viri con*
stantiasimi quando subest metus mortis vel
met us cruciatuB corporis Alexander Lib. £1,
CO nsiliorum, Consilio 99. Num. 3. L, sed el
fii 3ff. ad Legem aquiliam, Ibi et si metaEA
quis mortis furem occiderit. L. 3 § d«cimo C
quod metm; causa L. 4. Cod,4.odem L. 13 d«
trunsttctiouiljiis * tbi set) talem metum prubare
oportet qui salutif Hrel perioulum vel corpus
cruciatum cgnhneat, L. 7. Cod« de lits qut»
^i mctusuecau^ gesta iaQt» ibi tovtruineiiium
si
id«
iricuio
■
upom a PtactMi cf EmiT^
i^. IX. \6%u
[lia
rnetu nioHit ¥«! cructatu corpom eitortum.
ilftrthdua diet. L. 3. § an i , tf. de vi el
vl amiata. A nd y'foiV klx s din^ lo llic
lawis and ti^tittioaeis oi liaclo'rs addiicet
heirtoftiiir nil n^ifn^uig wilb e(]uitie and rea-
aotie 110 ij!i - >« And thiiirfuir uochH ye
wftling II Flinty lyheUit agnnis Jamei
'Gordoun \\\v Tust |Kmncll can b« eatiinatto be
ano crytiN^ (Mini'iKrlmf>le l»e death or to cuni
vutler ye a^nipus of the act of p*Iiamt*nt
f^uist mtercoininonem itiflictiujj;' vpunc thame
bo pwnisrhment of deathe cicepl it be Iv-
heWti und vtider^tuid that a6 be wa*; anc vvit-
liiig iotercnmmoiier so he was aae^vilful inter-
eonimoner Tbat \k qubanr be intercom moned he
I hafle atie ire wilt and lutenttonn Fncuactit in
Iha doi n i^ of the eaiiie The p» iin rl lis assyscria
ia a9(ioy[z4jing the said James Gdrdoun from
WttJiig interoomiiioiiing lies naitayes acquit
■oe tf«8{Hiiaouf« agatnca the act made
'againes intercommoutQg and thairfoir are
I not sdcbe asHysouriii a^ftiaes quhorue anc
relevant dittay f pone the act of parliament
'* dt: pena tetuere litiganttiim snper assysam'*
Icstt be rdevantUe lyUelUt for acquitting
Itlie said Janit-a Gordonn of ^jttiugr in-
' tercomnionin^ The said qualtfie of witting
being vndi^rstuid aa in the dittay distinct frutn
the qu.iliite of wilftill intercomtnoninKT "nd
I i^ittiout the samyne vnless my lord aduaca.t
would conjoyne the aaidis tua qnulitieii lu
ihcy artobe conjoynit in the act of p'linment
for albeit they be conceived in ihe same dis-
junctive zit ttey ar to be vuderaiuid copulative
oe atalututn feratsensiimjure c^mmuni con-
^^tratiutii et fubi ipsi. In quhilk caice gif the
' act of parliaipent i$ould be vnderstuid co-
pulative ns of c<{uilie it aucht to be and the
dittay confiuiue thairto carift wiUing:Ue and
Vrilfi!" - '? » hf Heini thai the quulilie of in-
ter< ' uiUuHit? was njiutiye^^ proven to
the ^ . - - .> James Gordo unes depqcsitioun
and circunjsNii»ce.s thairof producit to thfc said
BMynB But on the coolratr it utiuli \n' schawin
cleirbe, tbat out of the aaid u and
n^yV waye« out of the g-emt i inptiua
cariadire of the refielbs viz. tbiit being' despar
I Atlie diiHirdoarit men and haiveing schakiu a(f
the feir of G<mI and bi^ ma'iies lawis and
liaivein^ tntrrt^rysit ane desperat cours' of
' pf»\ 1(1 doune the cuiintrie be publicl
iiost it !£ rncr to Ixi presnmit againea
thaiiii' uijii !ii tuvo*re of tin* l^idrrea qubome
they acddentalliesurprvst That j^if the letcl^res
doe ni»l haivt! conff r*""^ ■ '''■ ^'-^'ne at limir
tticiliiijf lK>t preioe i< i \ tberwayet
thairinal;i is
'ty attetiipl!; ., ^ ir
l>fe Ami also l>y the rel»elliM thaircariudge and
' Aair ttm nrt-idttntail «urpryi>efi of Jmnes Gor*
doiii ' » the uayse it lall be veritietthat
the GordouD foraoy thing that waa
m Jo the at^jadrii waa trcwbe fomt and
irllit to nay mterooQimoniR^ he had with
le rrbeUix and tbat Iw? anejuxt fcir of the
ibunifiT of bm lyfe i|iibiik trewbd xntgbt kaive
bene ane laftit dainffer gif he had p^reieeit ajr'r
to refuis^ to heir thair discourse or to abvd»
with ibnme dureing tbair pleaa^r ©r gif *(he
bad preiccd to haite gone his way or raisii any
hoy and cry to ad? ertyse neighbouris (isfif anjr
was astrewtie thair was nane) to hare appre-
hendit ihe ri*bellis In respect of thv quhilk
alledgance the dittay aa it is declairit la na*
waves relevant.
Jt is alied^t be Mr. Jo* Nisbett aa prolo-
quiior for the pannell that the dittay h nawayi#
relevant couciuiding penam temere jumnttum
soper asaiaom, vpone the alternative concep-
tloun of the act and assumptioun y*upotiu
unles it be vndcrstuid joyntlie and copu*
lativelie \'tr. that wilfaUie be fauo^r and partiall
mtianes and temerariousUe this pauntll ■■
aasysor' hes acquit James Gordoun agatiist
noltoV and manifest knawledge Beeaus in law
temeraritie is nocbt ane cryine ralea it be tu-
dersttiid with a preauppositioun of wilfiilnea
and dole q'lk is asseotiallie requyret in all
cryinesi aa is at lenth enncet in law and rea*
sooe and w^thouttbequhtlk teraerahtie resolre'
i|)g' in ane iiivoluntarie ignorance iucidenl to
the liest^ can nalher be schwnnet nor pvvnei^
in ajs^ysors quba one yair aitbes ar nocbl
obleist to vindicat yair judgment from error
hot trom depravation n be partialietie aa at
length is schawin in law and la constant b«
the 33 act parliament d Jaoo. primi Q^nhair
the oath precsry vet to all judges is That thay
sail determine all canss^ acooirding to thair
cwnning and skill, absque favore odio frauds
vel roUire aUquo juxta suas scientias. And
y^foir gif yis pannell have delvverit accoirdiog
to yair conscience (aa my lord adao<:at hea ac*
know leg it) albeit i^orantUe—thay cannocbtbe
indytit de teoienirlo \el illicito juramcnto. As
the law in the ma'tie spciketh seinp tbay btif
done all that was incumlient to thame in yair
deutie vpone y' oathe And gif thay had dona
vtberwayia without res|iect to thair awb knaw^
lege and conscience, albeit yair delyueraoce
war sDppoaet mateiiallie just thay aotild b#
teyntid with tbnnall perjurie qMk is only the
cry me pwneiBchable in judges in all 1awi«
und in the law of ye maiestie k emphatic&llie
qualifdt w't the word dtjerant aAd ilhcitum
* juramentiini de pena temere jtirantiiim sup«r
asfiiaamq'ik an nocht quadrat to ignorance al-
beit nevir sac gros' Because no nan is ao bias-
phemons as to aw ear tbat he tall not err ign<>-
rantlie And thair is ^reatdiiference betuix ana
ignorant assyaor and ane fals- assyseorf betuix
ifjfnoranceand flilset qlk being the adequat sub-
ject of ye act and rubrick being concearcd
tbua (anent fds assysores in criminaU cans*!!)
nr'iu ihe alternatives ar jovnet, erinceth that
they are to be takin copufativelie for other-
wayis temeraritie or erroV w'thout wiliuhiet
could noobt iinporte falaet in aaiysors becauae
ill law nemo tenetur fattti ni^ «ciena et dob
malo tl\ ad legem Corneliam De Falsia L« 9 ^ j|
et per totum. Et non nisi dolo malo falaom eom-
mittenteai crimini aubiungantur. Co^K eodem
L. %<>* And b« lbs 17 act of tbe 6 pMrtiamcnt oC
187]
S3CHAULES II. Proceedmgiegainai Alex. Blair and aiher$, [128
long James tbe secund officers ami jadges
irespassintr in yW otHees wiUuIlie or only
{iwneiscliable et imperitia in sc non est de-
ictuiD. L. ftiiali fl*. de variis et extraordinarus
judiciis: vU per Improdentiam in-
ter pretaiurjusticiaiu juris qiue dicitiir stukitia
L. si per. imiNTudeutiaiu de evictione et lata cul-
pa, c|ualiB est error iuris et iatua-temeritas, iu
crimiualibns non equiparatur dolo. Clarus
quest. 4. num. 1. precipue vbiagiturde pena
cor^iorali, vel infamia. Glossa in L. ac-
tionibus in verbis oon etiam ob culpaoi. ff. de ju-
ramento ut litem et quelibet causa et le^is I'a-
tua temeraria imo bestialis excusat a duio et
peoa intamie. Farin. quest. 9 per totura : et
Ofunes decores, et oona fides etiam ex
rationibus irrationabilibos et tcmerariis cau-
ntur : Non solum in iis que sunt a jure per-
missa sed etiam que sunt de jure prohibita vt
homicidio falso periurio crimine lese maiestatis,
ibidem. And tbaiifoirtemeraritie in itself can
pot be ane cryme vples it be takin copula-
tivelie witb wiUulnes quhilk is snbioynct in the
act of p'iiament not alternatiTelie hot exigeli'.
icklie as the 27 act of king James ye tlirid p«r.
6 partiall malice or iqniorancie is'takin copii-
lativelie and ar joy net l)othe in the rubrick, be-
ing conceavet wiltoll and ignorant error of as-
^sors and in the body of ye act notwithstand-
ing the designatioun befoir in thaise wordcs
partiall malice or ignorance falset or ignorance
ar y'eAir joy net in ane word the said falset
qubilk is subioynet ef\er the alternatiue of ig-
norance or falset and repoitting l>oth et idences
that ignorance is taken copulativelie w't par-
tialitie and iuipoirtcs only wilfull and partiall
ignorance and falsett and noclit simple ignorance
end temeraritie quhilk in na law is pwneischable
in respect qr' of the dittay can nocht pas to the
kaawlege of ane assyse becMie in ane alter-
native sense, disjoyneing temerariouslie from
wilfullie it is absurd and irrelevant to infer
the payne of infamie, against honest men
quha hes done consciensciouslic albeit (gifand
and nocht grantand) erroneouslie and in
ane copulative sen's my lord aduocat will
nocht sueir that he nes iust reasone to
persen it since he bes dyu's tymes acknow-
{egit that (in his opinioun) this panneli
hti done iuuocentlie and accoiding to y'r con-
science,
It is alleilgit farder that temeraritie is nocht
relevant] ie qualifeit be the allegit iniquitie of
ye panneli is sentence because in law non
qucvis ignorantta aut iniquitas temeritas est,
sed quando jud(>x rcsistit jurt, actum a jure
diserte prohilntuin faciendo, vel eius precepta
sine ratiuuabili caua»a negligendo : doctores in
cap. dilccto de sententia exromunicationis in
sexto i*tqaundo judex constitutionis temerarius
^t violator. Cap. 1. eodem, Et quando
sentcntia fertur contra jus constitutionis, non
aotcro contra jus litigatoris Cod. quando pro-
focare non est incease. L. S. Nee quando
enratur in facto et ex causa probahili, quo casa
prdato Bun irrogatur pena, et si fulmco gra-
Tissimam excommqiucationis ii|iustt strioiieEit.
Decretal. De sententia exconmnicatioDis, cap.
48, vbi glossa in verbo . prvhabili affirmat
errarc ex causa probabili, qui errat in proba*
tionibus dubiis, quhilk the law intorprctis,
quando reus non est plene convictus per COB-
spirans ti>stimonium aut onmimodam oonfes-
siouem facti ct qnalitatcm. Cod. de penis.
L. IG. And in the act oi' parliament 1478,
q'lk is the grund of the <littay — ^nocbt cverie
acquittal of trespassors is qiialii*eit wilfuH and
temerarius hot qnhan thair is noCtor nr ma-
nifest knawlegeof the trespasser; and noobt
with standing yr!of assysors temerariuslie and
wilfullie acquittis tliame Qabilk can non qundnrt
aganis thir persones impannellit becftus the
verificatioun adducet be my lord aduocat wm
nocht of the evidence as importeth in tbe k«
notorietie lieing only ane qualifeit confrMiaia
q'lk cannot be captiouslie diigoynet and ia moir
a deny ell than a ooniesaioun acknowtedging
the fatal itie of the fact, hot denying* the forw
malitie of intentioun. For in law, Notorim
est quod set»e aperte in ocuUmi iagerit et noHa
tergiversatione et causalione celari potcat. L.
sed etsi uu pill us. ff. de institoria et actione.
L. palam, ft*, de ritu nuptiarum* L.
if. De verborum signincatione. £t
doctores ad eas leges : ^t notorium cat euoa
oianes sciunt qiuindo nuUus est locos inocia*
tioni ct cuius vniverste vicinias populusteatia apt;
cap. cum delictis filiis, s. presertim. deorat. dt
purgationc canonica : cap. cum scelus caoa
prima. Quest 1. Dammoderius in praxi cri-
minali, cap. 10. speculator de notonOi per la-
tum. £t quando reus ita iu obiecto flagitis
deprchensus est, vt vix ca que comiserat Be|
suliiciat. Cod. dc penis, L. 16. Et
suflicit quod factum sit notorium nisi
etiam siut qualitates. Et non suflicit quod eon-
stet lejum occidissc, nisi coustet etiam qiml
nulla discussio vtl excusatio cotnpetit leio %M
minus punii>ndus sit, potest enim- fieri vt (
dtTctM sui defcnsionem. And y'rfoire
ye quahteis q^rof the cryme cousistis, viz. .
James Gordoun intercommoned wilfullie i
wittiuglie of foir knawlege and set pur[
knawing the meittin*^ of the rebeUb ana tiyil*
ing with thame for toat efiect was nocht oqa*
staut to the assysors be the paimallis oonfts*
aiouu or vtherwayis Bot in the contrair Iks
panneli James Gordoun excused his material
confereuce with the rebcllis, affirmeing pse^
bablie that it was nocht wilfullie Bot as sin-
drie vtheris knawin to thame selffis- in the
countrey quhair they duell that he was anv*
pryset and necessitat be just fieir qui vaimi
cuderB in constanlem virum it cannocnt he
said that this panneli lies acquit him agahsift {
nottor knawlege and evidences.
It is lykwayis alledgit be the said Mr. Ib'e
as pro'r tor the panneli that the dittay is ea-
way is relevant as it is dcclairct be my loid
aduocat insisting only against this panneli iir
acquitting Jam(» Gordoun of intercommoBiHff
wittinglie because y'r can nocht be a dittay i
error bot ibr acquitting ane uottor tresps
of a cryme as the act bciris quhilk is the |
8
129]
Up«m a PrMtti of Error.
KH. ifiSl.
riao
wi the dltf^: Bot sa it U timt int^rcotnriKiniii^
wit: ' ' ; itiiQi takitt abstrecUie ironie >ei|ya-
tit: [»A9t Ira is nut a cfjnie ftnd id
144} vtrha mmt. That tuuie presume or Ulkl
vpoDe band to recept !fuppli« or iDtercoromci
Ciueae Marie: pari. 1535* act. GO, tcrba tunt^
iuckucii4 Lu dio betvl being Htirpr^^ci ^vitb a ) tending to fiteir liie ht^arti^ of subieclis to
iBUitilutle ot rebiHIiaqiiliimie Umy ktitw : And
noiwitltfcttiniling ihn^ knew tliame may inter-
teioe with ^eiterHU dbcourse and ar nocLt
DbleLH tn imtot tliaine wilbisullaitnes and si-
lence and be a ftKilisb nyccfirs to tentor yair
Ivves And ni la^v wilfumes beiog-lheessennail
AfacAce »f all crynwa cannot be sttp^ieat
A^Ome thattie without irretevancie and absair-
ditie. Ciiifii lualHicia propo«itiim ot volunUi!9
di8tin«(Uit : L. ({iii tntnrie* fl'. De furtis In-
•tittUioiijhus de obli^ttonibtis t And in :i)l llie
rrimin:dl cdtcti^, and iDtordictis of the law nnd
prmj^matikis and itatuiifsof all nationes dole and
wilJ is evir requyret and pwueinhct in crymca.
I>e furtis, L* 1, ». 3, f bi iVaiis. L. 5J vbi Toiuntaa
et prmtoattunif L. 47, s^ 7, L. 2d, •. *l. librani-
la, L, 5, s, Q. Vbi dolus malus. Titulo, si is qui
nenti) Liber jusaus erat corapissc abquid
liminarm rerba sunt si dolo [italo. ff.
de y\ Ixmorufy raptonim vbl dolus mnliis pa«i-
•im. l^% «. 8 ct % L. 4^ a. 4» ff. De in-
cetKliis el roinaf vbi didtta inulua in fronte
«dioti ; et liluji ibidem. L. 3, s. 7 ct 8, vbi
Mientja tt priidentini et L. 19, b. 1, vbi data
opera, fT de ininriis. L, ^^ i. vbi afteetus ex
quocrimeD conutslit, L. 11, vljt do|ii!4, s. do
esli-aordinaniscrinHiiibua %'bi ilaU opera. L. 4,
9i miDius. L. 7. tf. De sepukhro vj^daiu, vbi
d#liia tnalua in Fronte edict). fH. i>i? prevarica-
tione, vbi notio verbi importat doltim. i\\ ad
Lii^em JidiMin tnaiestaus. I>. 1, vbi dolus de^
litiitionem uiKreditur. L. 4, vbi quater rejie-
titor. ff. ad Legem Juliam de odulteriis vbi
acicrttia et dMu nmio jiin^untur. L. 14. vbi
Cunvilinna et dolus raaUis: ad Le^em C'ornc-
liBm de fiic^ariia vbi tlolua nia]tii» in iniuo; ant-
muB, s. 9 ; vobuitas, L. 14t fiiH>nk% L. 10. ad
Legem Cnmeliani. d« folaia, per totals g, ad
Legem Juliani d« Annona. £t ad iJfmtx Ju-
liam de peciiflatOi ct ad Legem Juliam de »a*
critopiiis, povtm. Et ad l.x><^em Juliara di* pla-
gianw, vbi srieiis et dob mailo. L, 6, t. 9, Et
I iuniu
aid ienaitii9-rmisultuni Turpilianoriim. L. 1
vbi mm^% »emper apectantbi, 9. 3, el 5. et in
mmmib^Bm iot«nticriadc»lfisantintelligitiir,aiit ex>
fntelllir : *r qnnrum bononini ne vis *iat, Stc,
^d Aeliumat q'lk is rrimen gcmerkum H mlu
mpm^m^ ^hair ye occurence of ane stmnge
caioB qaadtvtis not to ony perticular faw i«
defyntft <* pea- dolum.'* ff. 47. »it. yO. de stel-
lioiMtu, et eodice, iiadera litulifl supra citatift*
MarcvM Otafiiaf- Cooalio 88, wiinc«»<«9 that ye
^j% «f |nngraietlce» sgainti crymes, et a/r-
€^€t the recTeptingof baukf},issp^l4Jt30a menU^
Of frtlflillie. And in otire awin aetis of p^lia-
:««nt doilfia or \\dfu)Bea li ayer ejq»re9sft or
iinplyit in woii^is, deaotttiig it aa (ihat nane
presume or tak vpone band) ** qusc veHia sup-
[«oniint doltt)0»/' Ginrba C-on!*trio 28. Quest.
m\ FarriBiymii. S8. V ' ' c«dii fi, 1667.
act. 5U Tliat naneiY-c or monteine
«r tryst tfi rtjfrt e#t«et : thu u-niu la ^mpbalick
iJiipoirtiog wiU'iilaca, J<iUi. e, par, l&»i, act
VOL. ;
haitred qubilk implyi? ane wilful inttiulj
Jacob. Ct 1364« act 'l29i verba mn(^ cod ten
tuouadeclyneing of bis bienes judgement H
that nana sail presume nor take vpone band
And in tbe act 130, eodetn parliamento verb
oadem et act 134 eiirsd pariiamenti veH
6. patliatiieoto 10. act 10. verb
^^ 54. parlia. 6. act 17. verhu j
ttHieeiiitJBHaaBmg^ trilluHie: Jacubi i* par.
Cap. 54?%rlm sunt that oane raifie ane fray in
tlie hoiA wilfulbc: J9ci»b« 1, Parlia. 3 Cap. 37*/)
That nane recept or doe fauor to rebel I is wil*
fuHie: Jucobi 5. )«r. 3. cap. 5, Anent willul^l
tyre raising : Jacobi sezli par. primo actii vi«I
ttmo verba eadent: Jacobi & par. 7- octu 97, f
That nane recept or doe tauor to relieltiti wit*»l
tin^li^ or wilfiillic: Jacolii. 6. par. 3. Aelu 4.6*
Agunitt wijfuli umnteyneris of erroniusdoctrioes '
111 lirif* Jat obi 6, par. IS. Actu 164. verba suni* \
' Ml* that recepts or interteneia lilting*
ij' piene jesuilcs : be all qubdk allega/* j
Ifooes It is evident that ncknUa sine doio tt \
htniatein nocbt an eryine £t accipit-nda i
semper ^cientia eias qui piH>hLberi piJit^t ; ft d^l
nuiiiabbussectiuuibus ; L. in dilictiii; Caitfluii; <1#
aii\ilinin prestante ^lost delictum ubi sinemer et j
dolose, ar qiiaJitei^ necessr'lio requyret im\
criinine receptatiums. And v^lbir it is cottstan^l
tiT.tt miercommouLD^^ willinglie without ye qua«*
bte wtifull caa^ uucht be tbe ground oi* an
dittay Nor the ^eqi tilting of i
wttiio^Hef the ucquitttLig of ane trespassor, ani]
\it€ u[TOtiiid of tbe diiiay of ern)r jlnd the al-
tei native coneeptioun of the act cannr^citt ito<*
[lorrt thai lulflipminonin^ wktinglie uithoufj
wrHullie issiJM^Ktt to lyle p^teis of ansea--
pitall cryirie becaii«:tlie quabieia witttngfie in^ ]
wiifullie ar to be takin compicxe as tliay
taktn in all criminall atatutis, and the impro^ <
priatioun of ye disinnctiue is mair vsnale aitd J
to]lerab)e Ibau the barbarua ab^urditie that j
aonld tnsew vpone ye takin;,' of tbarne separ*]
ateHc viz. thai ane cryme sookl be niiboat iti}| 1
and iotenttoun and tfiat Wahn* Hat and otbet
gutd subiactis, becaas ihay hati intereoitt*
moned witttiiglie being tsurjiryset am) lorcet m
to doe for feir of yair lyvcs sou Id be lyable ii|
eafHtall gitilt and puueischment aeetog aliitiilei
ptmientm facta capitaliter requh^nl «k>litni| \
vtmm ii eius naentio non fiat : £t multo magii ^
qnando impoaitur pena pro eo quod de Jura
comuni mm est pttnibile; aa intereommmiinjf
with rebellis ; Et quando de dolo aliqiio moflo rit ,
mentio. As in the act of parliament be way
of altenmliver Far. quest. 90 Num, ^'2. vsqn^ {
ad. $a. Et inteUigenda sunt statula pe*
cundum meutem atattientium. IViascant d«
generaltslatutoraminterpretatiorie; concluston« j
3a. Num. 4. q1k \& argued be (tie motive and
end of tbe legislatonr e\pre«!s»ei io Ibe alaiateft
As in tbe present caice, the reprcsaing of re-
bellis be taking' from th&me all manteoance and
comfbrte qnhuk is not prtiiMifct be iorr
k
33 CHARLES II. Proceedings against Alex. Blair and others, [132
that he was violenced ia his stay with thanM
Quhilk asseveratioun of the pandell beios^ pro«
bable in the generail and in the particular se-
cundit widi tlie declaration of some of y*
number ancnt the violence vset be the rdwlni
in schootint)^ the durris and kei|iiDg' in James
Gordouu sould haue preponderat ony slender
and remote presumptiones adducet be my lord
aduocat to infer the qualiteis foirsaidis. Quim
in criminalibus probationes debeant esse luoa
meridiana-clariores L. iinali : Cod. de proba-
tionibus qus reperitur canonis causa 2. quest.
vltima capite sciant And some of the best
criminalists maketh scruple to condempoe
vpone presumptiones albeit yaur war nevir so
niony and pregnant Etiamsi essent mille }
Paulus. de Castro : quia presuroptio non en
Veritas sed veri similitude And q'as the
dittay qualifeis the error of ye senteooiL
be tne notorietie of the qualitie wittiuglis
and that James Gordoun confernt with
ye rebellis knawing thame to be rebellis and
ISlj
occasirmnH intercnnimoniiig'. £t iutelligenda
sunt statuta uiagis secundum intentionem
quam funnalitatftm verborum. M ascard. Con-
c'hisione prima. Num. 9. Et secundum jus
conimune,Consiiio 2. per totum;utrationabilem
seusum cuutineant et ne videantur statUentes
ea ex abnipto siatuisse, etiamsi essent verba
impropriand : ut ne absurdum contineant et non
Judaice secundum corticera verborum, sed
))otius secundum veritatem quam rudem fig>u-
ram statuti. Et ne quis inda>ite daroaom par-
tiatur ibidem et nulla juris ratio aui equitatis
Iteni^itas patitur vt quoe salubriter pro vtilitate
honiinum introducuntur duriori interpretatione
contra eonim commodnm producamus. ff. de
lecribus ]. 25. Et |K>steriores legfes ad priores
pertinent vhi ogitur de interpretatione. L. 25.
ibidem. Et in le^jem committit qui verba am-
]4lexus contra leges nititur voluntatem. Cod.
de Icgibus. L. 5. et exempio graue est ita
l^troncs requirerc et innfx^entibus liat pericu-
liim : Cod. de his qui Latroncs &c. L. 2. in
ilnt;. And y'foir since the common n law anjij that thay could nocht half acquit him of in-
roasone rcqnyrrs willull dolll and omre auin
law be aue act of kii)S>: James the first pari 3.
cap. 37 puiieisches will iill recepting of rebellis,
the nileruative conccptioun of the 97 act of
king James the fiflt his 7 ]>arUament cannot be
takin striollie in a Judaik construction as the
law spcikis dcboirding from the commoun
straync of law and of all crimmall statutes
Aiitt the dittay iiassini'i' frame the qualitie wil-
f iillie is altonriddcr ii-rorefaiu and may quadrat
alsAeil aspunis Walter Hay and the maist
hrivnll suliiectcs in the land as against the most
gdiirio inlorcoiiimoneris.
It i^ fHnler cikit for the pannell be Mr. John
NisIk t thiit the diltay is nawayis relevant qua-
litt'in<r the pannell tu half acquit James Gor-
doun wilt'iiiiis and tcmcmriowie be the al-
ledgot iiuqultie of the sentence Decaus thair
verdict is iK^cht fals and temerarius hot weill and
warr.iutablie ddy^erit In sa far as the ciyme,
y'of James Cordoun was acquit being inter-
commoning consisting nocht only of confer*
f'nce with rebellis hot of a wilfull associatioun
with thame of foir knowle<1ge be try sting or
Ttherwa> is as is constant in law and be the
itraine of the act of parUament and it being re-
mitted to this pannell to try quhidder James
Gordoun had intercommoned wittingUe or wiU
linglie thay delyuerit that he was free of inter-
coinmoning wi&ullieorwittinglieoffoir knaw-
ledge of yr' meittin^ or cumming ffor ony
thing that was provem My lord aduocat to
quhonie it was mcumbent to prove not only
conference witli rebellis hot thequaiitie y'of the
cryme ccinsistis baveing adducet nathiug to
astruct it and it nocht being constant to thame-
sclflis in yair own knowledge but the contrair
in the generall that many guid subiectis in the
places qr' thay duell hes* bene inveglet in con-
ference with rebellis without ony disloyall
intentioun or practise and ye first pannell viz.
James Gordoun disarowing vpone his greiC
tercomnioning wittinglie In respect of ya
verificationes aducet by my lord aduocat and
that it was not deny it be James Gordonn that
he spake'wilh thame and at that same tyma
knew thame to be rebellis It is answeirtt that
yair meaneing in' acquitting him of intcrcom-
moning wittinglie was not that tliay said that
ho knew nocht the rebellis but that thay fand
him ftie of intercommoning wittinglie aa h is
takin in the-act of parliament in ane copuli^tiTa
sens' with wilfullic and as it impoirtis a vdiiii*
tar ingadgeing in the companio of rebellis of
foir knawledge knawing tliame to be rebeHia
And the occasioun of yair meitting qlk is tba
only meaning of the act of parliament and of
v' delyuerauce conforme qr'vnto the coonsdl
jies dismissed without censure sindrie chal*
lengit for reccptinff knawin rebellis Aad
namelie ane Prat and his assolzeit thame of
y 'r reoqiting wittinglie or wilfuUie becaus tfaey
war Burprysitand could nocht resist thame And
^'ras the error of ye sentence is ag^praraled
in respect that vpone the sole declaratioun of
ye pannell they naiff acquit thame and oon-
sequentlie done quhat in thame lyis to infeil
and emancipat all men to intercommoun ypoiit .
hoipe of passing frie vpone thair awin deda^
ratiouu that yau* intercommoning was fortute
and against y'r will It is answerit that albAt
the pannell had nodit dedaret and asserent
bis innocencie thay micht haif acquit him The
cryme and the essential qualitie of it BOcfai
bemg provin vnto thame. Quia actore mm
probante ahsoluitur reus. Aod nothing baiog
vset to verifie the cryme hot bis awin dopo- .
sitions quhilk he qualined confessing intetcom*
moning with the qualitie of fortuite and na*
cessitate quhilk exniattis ye cryme and impltoet^
lie denoitted in nis depositiyones be thaiit
wordis that they come to him to his awin riot
and was yair liot half ane hourflb' and had bo
discourse hot of ye lane of ane pistolet quhilk
Mthe in his depositioncs ony oommerce with . he refuisetand tliat they come to ye hoasaq'r
Iktme and pobnctlie in judgement afirmeiiig* he was at nyne iio'is at night bodin botlit >ttM
upon a Proceu 0/ j
t5fm:*;\vltli ^TTinnnnM and ivith the iiumWrthiit
K» ^lioutdiinrrer oppose iKame All
<J'ii uices iih|K»rtetli surprysi? aiul
rioltiwcii i el iiuius nif'tus qui poleiil liilere m
oolistaiitem virum : q*lk hequalitie»J^'Vfk'r ex-
firesslie in judgment nffirmeinqf vpone Uh ^rii
aatlie that ye lUtrris wjir schoit anti y*ihir
txmi'csisii) qi)ftl»fica|JH hod Mhh ^cinili, Balet.
L. 1. DurtK 43. Coil, rie confessio. FariQ. Qufst
iW. iitMti. 149- et 16a. Mt precipu4» in ii^
vpee noil ftirii jurccomnnirii prolitbita ncc Jia-
Cent contra sejnti • ■ ■• ^ -f qnando
^dlilas atite j bus vel
(Ifesiimptiombus ; 4.^,.. . ..u,^. ;.,>ii conKtal
*le ddictifiqiiafii per conlHsioneni. Q'lk co«-
diliones qtjjKJdraiUs jire^uanttie to thf» present
caicc the qualitin of the surprv&e litin^' i>ro-
Imble in the ^^encrill, tind kimwln to hoirt* ucne
incident to n; ^udiectisuud in tlibcaice
ihecrymcbi . nl no vrhrrwayis against
the pRnndt nor he hh awio conr«i^imni ami
the iledar:i(nKiii of puinie!; vponc oalhe fnay
lie Riit^ ' ' . .' and informarive to as-
sy sonj <'d waiTanlnble be judges
i.d ijn*b'iiniuri) innncentiam OHe in aninio
<5onsiseit. Be ibe law oi God Exodi. cap, 22.
vt*r-'' - ■i-^-tino de furtis Hcfutcr. cap. 21. de
c» r cap. 6. verMi 1% ije uxorc kus-
jK<-,_ l» Mk? t'ivilelaw per tertwm in L,
tbrtr. ?. /T. de his qni nntantnv in-
Jamia ', • crbn innoccmiam : et Decins
16(S ; nil; :::,• i,i -•':r,;.|M;ii iJ ;.•',., r:i (iinil ITei
€Uni jtlf,ii:r Lit'" ; (jinu tlrju'insrsil iny s ,ib ariimo
ttatuf juramentu vm% de cuiu» anirno dnht>
tatar; L. 1. C'od, <le iirani<i et ahis ah eo citatjit.
ICt GfrvttiB Lib. 2do obnTvatiouum cntp. loo.
Im m cafnerd judicatura rcrerl, Anrl
fjuhair as the painmtliR inlcrconimon'mfr ^i^.
Sumr"* Uordoun is ng^ravatit in thai he advt»r*
l*risrd nofbt the wrXrol' ye scliyre of y' being-
in the cunt fit' that he hiui nn licence to inter-
mm mo u n u I » ' • • ' — f f Vn m h i m e an d h e folhi\red
thnnie not vi -I ery It is ans*rit that
the viarrnntl , . ut-e of ane s'reffis i*e
quyrit quhen ane pai'tie <br *iome caus intend -
etb ill riMjfer with rebellis and the irant of nne
^f jot be impnte*! to pairties isnrprv-
«it w:ir no necessjitie to odvertis* \\\e
niAgifiirtidM ot ye fet»elhx being in the cuntrlc
becailA tt WM nottourhe knnwiu that tliey war
maTin*^ up and dmm the cnntTie and the fol-
lowini^r with hoy and try ik incurabeul tn g^uid
jiidg'c« qnhen they ar of that number and
pou'fT as they may oTcrtnk thani Lastlte the
not ' ' ' " ' ' of rebeltis ar
<4ii I'tniu^' quhnir
l^t*MM> J.iiJir , S, .,; **;♦ ^^^1 ,j(;_
fjuitt Amiquhnirn*^ luih vittin^-*
lieand ot iit.r I u .^^ I ,) .,....,. ikbeeou-
■tont Iw and tobtrvidi'ncit
frtirii 111 ^ 1)1 the rebellin ai»4l
*Vr. I ourH^ he had with thame and hiK
iav ;t K'iir)jiiiiir m\A ios.tavintj with
thj !xr, and
Ui« ,ir*to hu
mi^iit I bo prc-
•umit til jctctg' so
Fd. 1681.
neir home hot of inlcntiouo to interc
fhiefiic In the house qr* he utayil hcini; ^nfpe
to haive bene the haHwur and ramlcvnu^^
nhvllis. It is ftus^rit that \m 1! i^l
bcirin^jtheoccasionuoflhairmeitiny, el
and subj^^rt of his oonferenre^ thctuJiu'it r ul the
relieihs and ihair eqnijipadLje and funuior with
armes thcit^ U»ot hia intcrcommr t
lliame was fortuite and |>assitie
- ' *' ConsiUo 36, in 6oe Lib. 3, ^ mwiv.
Ntini,«4. lU'belluH did non |
u^i -jin i»cT nicLuin ant coacte aliquid fadt
talis dicitur rebellio psissiua, \i qnando aliquis
recppit rebelles qui sunt pinres ut non p««6unt
expelli sine pericido. Bald, in L. deHcliii :
(F, de Noxialtbos. Fortheoocasinun of intercom-
moning^ with thame bis depoailioun bein
That it was nocht wittinglie hot he was myt
pryset inexpectedlie with yair cumminar wt4<i
that thay come to hts close and the house
qnhaii he was and the subiect of his conference
ileponet U^ him aneni the lane and refui^ of
I it the first tyme arg^uesthat he inter
I DOcht wittinglie and knawing that
iii IV vvLu- to meit and to cum to his close ¥cia|^ 1
It Cimnot be prtsumet that he %VMkl haif tndHti^l
^ered himseltf to no end and vpone no in teti«|
tioun of irenttie or accessioun to \air pmcJ
tises and the discourse of the rel»eliis th9^
«ecound tyrae in llas«jiewallis overbard b»
tlie panncil impoirtelh nocht iniercommoning
in the stihiect lei be ye quahtie of wilfullie
or utttin^lie For James Gordoun depones
'inly of bi^ liearing^ tliame relaile some of \air
doitiMis and deAig'nes hot not of ony intercora-
mnort'TititHin of discourse and it was nevir*
hard tbnt heirinjj'was ane rrymc, qiihen p*tei0i
dar 1. Its* the dislykin/BT of discourse,
if til ur nioir poweifuU and insolent
and boMiii vviui airmes asi the rebelhs war And
the bcini^ w'l rebeJIis impuirtiK nocht conTer-
siaiionem itiicitamt w^- -.-♦.' - .,..,.( ....^
et stricia ^ al ioq u i si s 1 ^\
non facit judicium .........
Farin. Quest. 52^ num. 19. Item, the plao
of the second meitting qr^in the dittay phicetl
anegritt presumpiiouu ufthe interrounnonin^^
«?ilfullie and consequent tie \vjtlins:lie It its r<*»|
tortit that most of uti the places iHutiir so ncifj
hiti awin house h\» May thair from nyne ho^ffl
in ye moirniog till nyne at nv*t the compantvi
qr'm he stayit his going to 6ed liefoir tlie re« I
bellis and i ignorance of the tyme of yair ryse*
tag eiinces, that his meitttui^ was not witling"*
lie foir intendil aeiiig it can nocht be prei^wrnel
that l>einj^ iio neir his avt in hon!«e he iv}dd half
appoyntcil a mcitUnj^ in so puhlict a place qr
his practi/es with the rebel I is iny*l havt* bene
iltM'Overed and that he sould haif Htiiyil ko fotnj
betoir y^ cumiug' in the com panic* of honest!
gcntilmen and etter y' cumiii^r ^oold haif bensj
•o Strang* as not only to atlord na svtpplic unit
not to l»e maid previe to yair way is and corre*l
ftpondenec nod con^ious of yair randiTons and 1
plaoes of recept ns he hcs ilepotiet Bfit to b«]
i|pior«nt of yair jfoinjf ^ ^»ed and ryseing"
quhitkiacomuiaun^uid fcllowsdiip cau no
iS5]
S3 CHA.RLES II.
be fiCfiimet iroles be Uiil disl^'kit the com*
janie uul mraoget bifustlfF iVonie thame
l^m ibQ Iyii44^ in one c*Ua liner u't rebel lis
fji^m not 8o mui--l» intt^nit h iuh\ f;iuuli»riiit^
, w't thtttne lu tlie si roftme^ kn^^ii)
441 Y^ tiftatysu'rs tuu tmc^ ciin uul l#e
#g)^iivvtiUU trtifii llje {lincii ii^ ^us^ifct to U*^
bttirU>ur iif reljejtis becjitiis it w«» iio' \m vfun -
I iKitid to lite paimrjlis lUa Vi: Ituilfr
' lniili» was !^4.i a Miu^ .1)1 1 II not b
to Ibiiiuesf'ltfis inay c^uld not hiui ik
ground ui prt>tiiiiii(iito«a iiofne it i
vdag the ^>uonel iW^uutt vpuii Uh
Iba* iic kjiL'W uot q'r tLe rd>flli>
tllftt tUc ilOUSC Ol UUn-M*^-
pTf*: .ou^e qr'iltav u««i tu belmr-
'■ tci«|:s ti4^ilk»nMI«*3i
uoir vi'^oit a& ttne
vin (juilt lM.*!ijijs thair
- i'uHt iisaysii* itoi lun
^Hnc M man («)'lk
) and tliiit bf melt
I A lid t \tc A>s V t^' c<^
bmudii ^s m%e
PraeeeiiagM aguiiut Akj. Blair md oikert, [191
boy over quhoroe James Q^wdoiui Ind pilvcr
ntnl qubumtf be micbl liaif Arot fiirih «t aoe
Htnilow nr |n'irat way whence hr niii^i baif
s«*nt him the relndbs niadtrrtan«r#' -vjuI lAiriiii
«>< c-iMuic iir iuiprolmbht* supptmol i ' 'i^
ovMc^mit that yftir uas any wuy in ^ mm
Uvv iii:a iu»e boy niy't Kaar bcor Ivt ibitta «
thrJ lluiir T^ us ony Ikiv ^uboaMr JacU4» OonbllUI
Atui a Qocbl beiti^ f«rc>i»uiiie-
lis who liad »A li^reai rcAsona
ivc* and quhu lor ^mr awM
Hch«>oLe durridt, wokl Uiicbl
uud Ui> noUor cxtn i
and (av*.M.n... .,♦ ,
pri
^vriu conlesN'Oun ii
'Wasdouc m iiw avu:
occasionaihc wilii lit
ku«^vv bini out vi.
fuFQurar and camplici- i>l i*,Ulli& as tiiay wiU
depone %|ioney' great oalht.' and inaisi of ibiiiue
Md II* ?ir twjiie or bard of him JieiA qr' ui
\m tntLrconjiaoniauf u iitui;rhe M^jtiH actie oi
yi^vV tjviMie qaal«;itad in thai
tif" r.oi'ye, bouse aad the
eoiiij^vii -J .1 I he was to 0]»[ki«s43 the
Fcbfib!* Ami < I oi a«e boy lurth be a
privf'i Lvi.i V aiid qu'by gaue Dot
ad I .'ijis \mau^ yiurq'lk hv
my ._ :t.iir goiug lo titnl or eitir
qnhen (bay w«r a&k>i)i at lei«t my't Iiaif oli*
aVau the way (bay hciU and raised I lie mm*
ti-ie It is atis*itt tliat as bis coai^i^ticc ie» juKtIie
excuifrct (jb ^^u^iimi luelutn 4]in p^esi et
debet cad ere in virum otuiatatiteiii ; lii^creV. de
ii» (jui %if metusve cauMi : Cap. 4. And in Uie
laiir ctiamsi dod sit vi^ de facto, aec tiiitiB;,
timor eliatD violentiie iut'ereiMkis jtistuiu iniert
iueUim, et vihub aniioriun, «t^i deleieiia lis
nou viatur. L. a, ff. de viaritiata; Giarba
COD8. SB DUO), 20. £t co{tstiUJ«i trlr eWj^t
jfrudenler luiuus iDaliim, a^l ini^j^iris uinti peri-
culuui evitaJidum: €*?% t "■ ■ ' n in ma*
triinofiii coDiractu inicr 1.4. lie
^riticr roa&uue U\s n a^aitiiiL
thaiiiebe way ofdeid t^ !c Be-
cans ibe iimtgmarie it di<ii.v
is uol in law rtqiiyret ot ^ymd *'
ure nol obleist to titntit God and
lyves a-^Ttinst rcbt-Um rolvij vaiv wur i;ru«a-
tiiiauce ot advaoiaicr! qubdk uas not Tonr
disperaiUc resolirit and lodoublit men ri/,
Alexander Leith and NathaiiiiU Citirtjoun w't
yatr tua men bodin all w't }(wa«rs aud pis-
iutettidlKfin^ loo Mi'iin^' for fuurt? honest meu
w:; nim and unc fiUiinnit trew of sicr-
V. albi'it Janu-9 OMrdoiin bad bene
Iuk ' tt is tiwt c<)u*»!ftntilat be bmi
pii\^Ki ii» winkthamej/irTifcw*! bim
And bj.i.,,. : <.jie mad lo expose tniuselii Ui
fmiii/eae UiG buto of jJiadokttbi i||atie LVem aoe
timd b«
i I iKit^ >%**ybiiii aaa
1- ..u^«M< ..^^it^etitbe ibei
ii rey tti ibilow tbaiuiu %i^lia
i^ti, ., cMf 001 quhat%%"v ih.iv ha^i
La&thi' q> «u» tb« aanyfio'i s ujbtv
tcinv'funoiis proci;doV is c , ao-
quiti'UjL; Jam«'S Ciordoan connair tu yc ert-
fkncre'^ re|}re.s«aUit be ii^y hitd AdtiiHHii aad
vrgtft frame biii a\%in depoiiitioun oo^iorisuf ^'f
\nUi Ukay %iar obluitft ti» bate jud|f«>d uotlnag
boiiig prcidiioei to Yeriti*? that be waa Ibroii
aad ftioaflyfat and that the durrta war i^iooia
It ta :ii I n'r^Lr not i^o injioii
jUil^^L^ n'lrUa. !>♦ act TO*
t iiitnii the KML;li&cbe U«^
1 itifidil not lu ^strict atid
*»M II iJn-1 ijii^uuiL uied^il tte hmi lor b'ia> do
fence be otiy fiber testiiuunie nor tlie kna wr-
it^ ufane a«&yse qr^ vulo he was remitted
and quhan thiy war iuclobet the in'Shiiionir of
tiia t}r thre of yair outu^H^r ud^bt liaiie b^Dt
aiip gfuid warranfl to the rest to acquit tiiio aa it
WAS souie of ihame baveiu^ \«it)i' s-vc-d toyf
Tvsi that they knew pi^obablie of ^it |f
durris ivar scboote and tliat J 1 > iloM
wabi have reteire<l himM^lIf bot u<^ KUiycd bf
ibe tfchooteii4Sf of the durris Aim! idh*-ii ygir
te«ii lUQQie \T aa only ^ audU n ai 1
of tbaise qubo war pra^eot tii
EDay bequarrdlit atKWcil a» Jait
uiilfbt baif bene aue iiiidicienl 1^
1! " - since tbase thai wur pruw u* tj
1 only ^viiqi^' and was
|*uMt...iui, iaiawlegebr-^- '^ ■'■hooy
of asMciaUoun or 1 *niQ^ w,
n^baUis and in the Lv. l^^.^imTuimi
di(u tacit preaumptiofit^iD, quo: opomliir
fiiiii:^ i:»!i?ite probiiiiiU traiisectt in adiMii
in uaifiUBfl
u ewet biic«ip
iuitur. Uia^
a 47^, Viquaad
ie!»tibU!i.
dKiM'iiifi probduonitf, '
mniicntmn Jtid«' js
iibiu!! de a
pi<»i);iiiuMu tiiai. !«i wirtKS^' audi
tet^liinonio of !•< number waai
nicled with tbi> vtkiwiv ^im* 1 ■ 'v ' rebeUts 1
scbo<»tein'^ ail iba 4gc»n:^ liny
knuwm to tinfcm^aelffiii i.'-v .m.. |Moceiilel
M
157] upoti a Proce$$ (^ Errar^
^ftir-nuiiiber AlUeit lhayt>e oibi iyed id law to
yu\gc wUiQiHie MecHudum aliefiutioae* et protu'
iiowt boUi (lecaus lUay nr wjtneis' anil Uecaus
&lbeit in tlii^ caice uuty tbe law n^iikjji a ilb-
tincuoun oi* conscU^ncse oq publicl ixirorfDCt l>e
»Ue^atume!» ami r^ltivftiit pr^ili^tion^ as the
ik|>u*iliuna of tua witness' of a deld aud ane
vlXu?r privai iufurtpet be aoc propper and in-
iBStin^ koavitege tn tcriuio pcctorit As quIiHti
liie juilj^^e knowetU il^t uiiueBs* de|M>DL't and
the ctiutiaii- \& www Ju tiiequhilk caice be is
t^bleiit lo judge iecundum cmtscuniium piM*
^ftm ei alUfiUia in auiHbm ^cveryvies iu crt*
winuitbiii the ItMf is an le^tdvr a^ iiot ti> vrgc
nnyjiid^ U)4klyii«r u{;;a'Hi^t yair c^u^'ieuce
aecitriduiU venpoj|)ioiii'«, m»i mnt tiptoiii
jurM vt conresiiMt tjit-ri irt qurdiUitum^* Ami
thaii'tbir Ui<; i^iuuialbn delyu/er4i)<.'e ia nm^i
ju#t, aud f}roc3c:idis %pone aU posnilUe aiul war-
raatnl^le |[i;;i-iiridi£ qubiiic can be iiiiaj^ined in
anc caice of ilila uiUire :fijfi.^l||p Aual Li icitiouo
of the imnt^lis t^rmi\tmi0fm fgMk m i^L^v^ i«
lodiviiMbiL'— ibe |uiiuie(liB p99ev^^ t ; i m i . t viwmt^
liiti ;;ni o»tUe— ibc* U^tirnouic of
Uiiciiber admifjicled wiib yV au.
in the t^enemll au«ut the fHt^ti^ 4if ye r* beiiis
and iJj uocbt 4>nly omUiMraie |p ye general!
ipouu^J!^ ^t'Uw bot to ye decisWses of ye niMSt
IWutJtis judicMitfifeiii and juritiC4Misi litis in the
Jyk caice ** de reC4fptati£i»e immt/>rmtC' .qlk is
f roquiaitjie occurreut in Uaiio Maritf^ Guiarba
iofitsmea aoo tauQe at}, itMbilk will berve tu
viwlioat the panti<^llis delyuerauce frome bei^g*
io Fniu^tjts is i^beUit JSjK^cies facti vmii
Hier. iiaro in area caropipi uuimni trabeus ctiin
ux^c t't iiUiS bauuitoruiu udventu pcrculbus
cuui fuerit f>biirm4iti* arcis Q^Uo,bauniti lutein m
liortuiu itj^r(j«^^i tiUain butoni^ cum nu^ice da-
|]ftheiidiuit. Hart! abducts infantis metu per
eoisuB bunuitosj uccvi-f^in jub«^tf a qnibus, rt's-
tiiuta liliHt obuixe ri><(»iii^ est vt eos qyidatici
iienuiicio itonaret quippe id euin facultatis a
prorev;e abtitiiiiaie se ce rto «>ctre cbcebant* Ne-
gautt baro bauc lie potestateui A^beri* ; veriAOi
iie ea re »e ad prorei^tjii litcras daturnm polli
cetiir : tuiu deinde eus bref i ciuiia reiiectoii di-
iitiiiit, Cmu in qticfttione crimlnisa tisoo Vi)raiu.<i
^ssfjl, conversation is ni milium cum baDniti^ iaita^
el auikiUi iis^ prf^ttti, pro eu Rrguit jurkci^DfluU
lug tp lull all«>oiiiiofitiu tiavlica cum furaaticiiL*
contarsa^) d^^tuin non indicat, cum ni^i
4imnit tuoplex etacciditfiUilia conTersatio mere-
atnr peuiiii, oec csdtsm »it ratio que iu teceo-
latiniie favore vci aiuaiii;. St^aiindo, recspiatio,
quoi doktta ei vd oittluia fiaann aoq est ; f jcnam
von ipenilur«(qiioiltt«l£iiil4aiiititieris tostitnoriis
let vfif iiig (vripnaii * auikat el prwiumat' qg^ ftop
^nupt. dolum ^ tJt-€ilelinc|uenlem ai>socia^epcr
li•dtbctlUll iMvUi^i :id luaUiQi sit; proindedig^-
lMSfitllaudet|«iiiuali vitcuidi causa banniiDui rc-
OBiftati pix>ciitioa oTimqiie qtiicquid probibctur
oon prQptercei>edad eviiandiuiituahmi uoaiUa-
qucat traoagrefliionctfQ ad iJlius penam,i^i finis
iliiusDon violalur TertioquibaoDitoseoacle re-
ocptat punieiidus non est&iexpellereeotinan po-
liutfdKK|U£iiui penculosquod^innliter contirinat
llMUmotiis, cum uec teacaliir fkiiii(» ced^se el
A«D. 168K USB
illic eotfi reiinquere ; cjuod astruit testlcnooiia e( \
duraute filiuc cartjeratiane : omn' , r -
Hioneia presumuntuTt et justiw < ^
hi iiborubi per^ona^ iicc lis de lacu* rM.t: tu-i^ti,
sed miuit sufticiunt »t cuacte rcceplet, Tiuvpf
nimiruin viakruiit! in fcrendtv infer t iii^lmn mer
LuiHt qtiiu aroiurnni vii»usjimuni ujlcrt inic^u^ti"<
ti si defcreiui ii!»U(m vtatui' et paria »uut coacte
acta a^it tiiiiore Ciiactliinis. Bald. L. ttovissf^
tr. qiickl MiHi tnture. ^Iks gryndls quadr^tti^. J
uppusitelic iu yc present caice and tuore preg*
najitlie becauii tbe cr^tne of intjprcomiuouiu^J
in ifot so gi'cat as the cry me of recept q^lk ^ ]
probibeit in ye comuiin law and iu tbc cuic9 i
rdatcd tU^ir >va!> {ine voluutm* act in ^eiidtii^
fur ibe rebelJls and intertt*nein^ and ^uppbeiuif> j
of tliucDc qiiHuir u^ in the pvej»ent caice ibair
CU1I be nQtltii^^ qualllcid bot tiurpryi>c and iia
tbt^ former caice tTatberlie tetidei-nes is not s#'J
ij|)pr(^s$iu£^ C* tbc feirfoi" ane maiiK uvvio lyic,
it it» al6o fardel" alledtfil be Mr. Jam- '^ m<". -1
Uiat a«ing tbe pannell did convict J i
iliinn of Sbinobter qubilk is auc h< i •
iiKerconirooniniT And y'i *
)i*kiy to tuk bif* lyfc, ite;t[, , ^
suuH*t itat wdfallieaiid jq coninopt of bi9'
aia'Lie tbir geniibnen wald baif claoj^et iiiiH^ J
of inlercomn^unintf q'lk i& & ^^ cry me uqc ,
sluuchttT girtbcyTmct not bene rewled vviihib# |
liebt of y^^ awiu cotisicieuces and vpouc tiulB-r .
ciept inibrmQlious of UU inuocencie. Qnbiik !
iiitorTi);il:iuiin h tbat tbe bail! asby^c at ye ie^^f j
th*' iffittest pairt y'of war inform et be ii^bert
( " V ' ' i^ordwun Jindl||# !
« • 1 1 and be R^oberl j
Jii'iiijjHRr <i! * uHLiiui^: uc jtMiiLit Forbes Jln"Q*
tbcr to ye pei-h^^wp of AueliUnh^ be CoI«
\ ieso u e bn rg-t s o f A In r^ 1 > ' * m = 1 I Hi ce rtanc ? tber
y:ciit«linciiquha >v;u < ; t (Jolkfi*i lum^i
llie ty me of the ranr.^ i ad bcing^ ail got '
ing* to supper at uvf^ bouriv at 6?ia in m
itormie wynlernyU tie r^sbelliti beiwg" airu^iil '
men boddui feir of weir with bagbuttis pLato<T
JetUji and bit^laui) durkis and all vtber \vappou«if
iava&iue ^terit tbe ho|i$e and tmmediallM
eftii- yair£Atrie scbote ike durris sa that y V J
was MatJ»er e^ess iivr ii»gvess And in taikMl
y'«i* ane aerfaiid *d' Bobf 1 1 Celleis being witb-
out v^tm not ^uilet'it to enter ye bouse ibat ^
Di^kli Natber fva& yair onv et llobert Collin
Jm v^rvnndid ^offerit so epqmII ^ ^^ goe out
tityJ mi^te yn>r s^uidis Bol t>e ye contrair tbe
l^id*^ Ti^'i- n »i" r f-^' f"..' ^ i- 1." v%i|fuU Ui-
IwcHu l^t only i« ]
ibi$ pi i,-v,u. ..... .. . ^ i- -, tbat.ny
l^tfd Aduncat <Ud fudicialtie accuse iUe>iBiiJ
Jaii^e!^ (fordcHin Ikii^j ilian ^mi ve pannell KfMmtel
,tbe,p> t all ibut I buif*]
now , tne his ^lva^u
I ut'o'i kbui be v%aJd bt^il' l»eoe i
k khe reb<'llis t^emg* tbat he couid ]
41oU>>u oiit (thay being, mai^terriid of ve durrts) 1
ibnlJiie $taw quveilie to bis b^ii and knew not j
qobati liie reUiUi^ hy doun nor qttbaa thum \
went a M", ay in ye muirnini;' qubilk ifaga||nti
v
1S5]
35 CHARUBS II. ProceedingM agaimi Akx. Blairand othen, [IM
be presumet voles be had dislykit the com*
name and estranget hiniselff frome tbame
Item the lying id one chalmer w't rebellis
argiies not so much internes and famiiiaritie
w*t lliame as the straitues of rovi mes knawin
to ye assysoVs Item bis nieitintif can not lie
•g^ra^attit from the place au suspect to be
harbour of rebellis becaiis it was nocht rcpre-
sent'id to the uannelh's rliut yc house of Hassie-
walbM was :nc a plau: juul it not b&n\^ knawin
to tiiameseltiis thay could not haif had any
ground of ,presum|>iioHn i'rorao it Chieflie
Being the pannel depunet vpon his grit outhe
thar he knew not q'r the rebellis war recept
And coQs«*4Ucntlie Uiat the bouse of Hassie-
vallis was notane boose qr* thav uiet to be har-
bourct Nathercaii theuanneliis&igitiousues
and hi-« not tor corresfionUencc witli tlie rebellis
and fa\ouriiit|r of tliame he now-vr^^et as ane
pre.^umutloull oi hys awin guilt beeaus thair
was luitninrr jnuvin to the first assyse' hot his
awin coutesNiouu that he had slane a man (q*lk
was done in his awin defence) and that he mett
oocasionalUc with the rebellis And tlie assy so'rs
knew him not vtherwayis brandit as ane
favourar and complicv: of lebcllis as thay will
depotie vponey' great oathe and maisi of thaioe
iiad uevir senc or hard of him IteiA qr' as
his inti^rcomiiioning wittiiicrlie a{(;ainH actis ot
narliaiiieij; is |>irt>siiiuptivelie quhleieid in that
tie joy 11 eil not w't thaise of y e house and the
conip;iuie w't quhome he was to op^Kise the
rebellis And convoy it not ane boy furth be a
privat way or window and (|u*by gaue not
aduerteisiiient of ve rebellis being yuir q'lk he
my H haif done befoir thair going to bed or eftir
quhen thay war asleip at leist my*t haif ob-
ftVuct the way thay went and raised the ciin-
trie It is ans*rit that as his conference is justlie
excuivct Ob Justum metum qui potest et
debet cadere in virum constanteni : Decret. de
iis qui vi, metusve causa : Cap. 4. And in the
law etiamsi uon sit vib de facto, nee minie,
timer etiam violentiee iufereudui Justum iniert
inelum, et visus annorum, etsi deferens iis
nou vtatur. L. S, if. de vi arinata : Giarba
cons. 2B num. 20. £t constans vir elegit
pru(ler.tt;r iniuus malum, ad majoris inaU peri-
culuni e\ itandum : Covaruvius dcmetu in ma-
trimuuii cootrac^tu intervcnieiite : Num. 4. Be
<Xrittcr reasuiie his not atlemplintr against
thauu' bs way of deid is moir excuseable Be-
eaus (lie iiua{;uiarin n^solutenes of the dittay
is noi in law it quyret of giiiil subjectis qiiho
me not obleist to tempt God and laveiwh yair
lyvcs a«.;iLinst rcbt-ll.s voles vair war grit us-
siiiauce of advantage quhilk was not Four
disperallip resolvet and ledoubiit men viz.
Alexander Leith and Natlinnitll Gordoun w't
yair tua men bodin all w*t gwnes and pis-
tolcttis huiti'T Loo htronc^ f(»r foure honest meu
wantii.g til ami! aud ane vnairinit crew of ser-
vandi*! Ai;<l albeit Jaim» Gordoun had beoc
fuii-laulic-biouie, itis nut cnu^tant tl at he had
power o: ilie le^t to maklhamej;.'^»Mew't him
And soiild lihTbene inail to expose himselli'to
baif beue the butc of pislokttis iijione Item ane
boy over quhome James Gordoun bad _
anil quhome he micht haif sent furth at i
window or privat way whence he micht baif
sent him the rebellis loadvertaooe and cauiea
securitic ar iraprolmbtie sopposet it nocht boi^g .
con sunt that yair was any way or window sua
law that ane boy my't naue bene let doun or
that thair was ony boy quhome James Govdouo
m^ cht have sent Anil it nocht being presume-
able that the rebellis who hafl so great rcasoua
to be apprehensive and quho for yair awan
s<u:uritii} vset to schoote durris, woki nocht
advert that yair was no privat way or uiadov
qr*by thay micht haue bene surpryset and be
could not haif observet the rebelhs wayiain aiitf
dark inoimiug, thay haitiug gone away befinr
he uas awarris and conseqiientlie tberaiaeiiig
of the cuntrey to follow thaime was noidloa
seuig he knew not qiihat way thay had takia
LasSie qV as the assyso'n y'y vuwarraiilaUa
temerarious procedoV is exaggerat fibr ao-
quitting James Gordoun contrair to ye efi-
dences rpprescntit be my lord Aduocat and
vrget frome bis awin depositioun conforoae 9'c
vnto thay war obleist to have judged noshiyg
being produoet to veriiie that he was forctt
and neot's&itat and that the durris war acbooCa
It is answerit that assy so* rs ar not tK> mucji
judges as witness' Jaco. 6, parlia. 6» act ?0,
ci puisim in our law and in the Kngliscbe law
Aud y'ioir the pannel iieidit not to aatrict and
ver.lid the qualitie alledgit be him for bis de-
fence be ony vther testimouie nor the knaw*
lege of ane assyse qr' vnto he was remitted
and quhan thay war incloset the testimonie of
tua or thre of yair numlier might haue bene
aup guid warrand to the rest to acquit him as il
was some of thame haveing witnessed to ye
rest that they knew probablie of thase that ye
durris war schoote and that James Gordoun
wald have rcteired himselH* hot was stayed be
the schootinug of the durris And albeit yair
testimonie was only de audUu and of the repoiit
of thaise quho war prsseut thameseltiis and
may bcquarrellit alsweil as James Gonloun it
might haif bene ane sudicient inlbrmatioun to
the assyse since thase that war present thame^
siitiis could only witncs' and was nott to thw*'
panoellis knawl^e brandit with ony suspilioqa
of associalioun or intercommonio^ with the
rebellis and in the law Testimotiiimi de au-
dilu iiicit presumptionem, quie operator lit
onus plene probandi transeat in aduersariwn,
et si deuide aiiquod adniiniculum acoestent
plena resultst prooati'>, prircipuo in iis quie sunt
ilitfioilis prubationis, quaiu uutem esset hoc ad-
miiiiculum Judicis Arbitrio reliquitur. Mineii
chius de arbitrariisJudiciis, casu475, vaquead
num. V2, et omnes doctores de testihus. And
y Yuir spring assyso'rs ar not tyed preceialieto
the strict rculis of probaiioun Beeaus yai -ar
probatioun thameseltiis and witness' and Ah0
testimonie of some of yair number was irhwi-
nicled with the vsuule practize of ye reb^Ua ip
schooteing all the d<M>re8 qubair thay <
knawin to thameselffis thay haif
wanantabUc .vpone the tcsliuooie pf j
upon a Prucnt af Error i
inl^rcomtnonct wiib tiie rcljflliii at tua s^ucrmlt
tytiies b^ bis it win confessbun did nalher gcve
ftigne of EiriscaDl£tilaieat the t>me of Im
eumiagf nor made ony wairaeiiit; to his lua'ties
Id^es And zlt tins James Gordoun quhm
waapnunellit^ith fmrenianent iuLlovvis Vfione
the tbtirt of August and contioewit lo the
morne All the rest were convict and fyltt,
tnd this Jamefi Gordoun was be tUe iiaroe as-
ivs« (f|idia in>ijvictit all ye rest) clangtt For
the *iu]iilk the cotinsall did oirdanc the assyue
Vt he perse wii to the efiect be y'r puneiisch-
lut ht or terror hiH maicstms subieclL<? sould not
presume to jntercoinmoun with the rebellis
1 pone exp€ctatioun of the 1) k ifupunitie As
J a nie^ Gordoun fund !i€ tlie temeraiious pro-
reidjDg Qf the said assysc and quhuir it is
ailedget tbnl the said James Gordoun his io-
tercommoning i^ith the rebeUis was not spon-
taneus hot foi'cet in respect of ye schuitting
of ye durris he the rebellin It is nnsVit fir^t
That this w as proponet in the firfct proces and
• rcpdlit Secuudo thiB elyddis not the first inter-
commoningat his awiii houst- in KnokleUhe
' quhilk per $e was sufficient to infer his fnttT-
comnvoning wiitinglie with the reheilis, thair
bein^;: na sic ailed g^ca nee of force of ^chuititig-
of the dut:^i* at the first tyrae Tt^rtio the
farnvn h ^^trair to James Gordoun his asiln
f\ev< hainthe sctondinterroramoninn;
i in i Us grantiB his conlijri'nce witli
I the rtklliij his soupping with the rehellis his
I lyine^ in ane chalmer with the rebelfis hot
1^ D«ver tk word of "his coaciioun or schooling of
[ ye durris in all the deposit ioun and the assyse
? VfikT bund to eo^osce accolTding to bis aw in
t, confestioun produce! and Tsct agauist him be
bis maiesteis aduocat spectallie seeing* ye said
schuiting' of durris was proponet and repellit
I be the judpfe And quhair it is allcd^ei that the
I assyse hes liliertie to judge accoinJing to thair
«:onscience And that some of yV awin namber
I did atlcBt to thame that thay did heir be ye
repoirt of thaise that war tn the hotise that tne
I rebeHis did schoote the durris It is answeirit
i that albeit qV na probatioun is the assyse
' may judge accoirding to their pnvat con-
L*dejiccs» zit quhair probationes ar vset to the
■M|yse in judgement Thay ar tyeil to judge
HBiDirdiiig to the probatioun led and producet
^in judgement andean pot judge against the
ajmyu vpone pretence of privai knaw!edge or
ioonBcieiice ffor that war to destroy all justice
■yofiiUe 8eeing be the I a wis and adrg of par-
Immcnt all probatioun in criminal canss^
i is or dan it to be vset opponlie ^nrl in fac« of
judgement and the privat knawkdge cpihilk
! they allcdgje to haif had be the depositioun of
! some of yair number can be no excuse iQ ihatne
; first Becaus it is ^raotit that they deiK>nit only
I «r (tufiiia et non f j- risu Nixt becaus the»s
' 4]tiha defionet ti nuditu declairet yat they hard
the samyu fronie Kobc^rt Colhe quba was
maister of the Inne^j Hnb^^rt Dempster o4*
Cuschnie and Hobett Forbes brolbtr to ye
persone of Anchterles and fra Robert Colliesone
i^urg^rs of AWrdene und certain Tthcr gentiU
A.0. l681. in%
men i|uha war in Robert Colfies house the ly m«
of the rebellis incuming qr*iipooe bis ina'tei^
ailuoeal takis instrumentis and ansVis that Uie
tlecla rationed of ye said is peraones being lub
todan renin be intercom muning with r^ielli*
could not be ane wammd to the assyse to
clang e James Gordoun As it could nocht be
ane warrand to clange thaq|CSclfliB gif they ^
hade bene pann«lllt spcdijpptipg tlie said
house of Tlasfsiewallis q^rof IfliVtd Uobeft
Collie wQs maister was ane verrie suspect
place the samyn being grantit be the deposi-
tioun to liane bene vnderuie raarqueis of Hunt-
lie within i|uba is boundis tlie rebellis presumit
to find fauor Lyk as the said Rob it Collie
maister of the bouse and Robert Dempster fra '
qubomeit is deponent thay hard the said at-
testation n war both denuncet with the said
James Gordoun rebellis at the instance of ye
laird of Frendrancht for not compcirancebeloir
the justice to vnderly the law' for soirning and
opprcssioun committit vpone his tenentes quhilk
the said assyse could nochi misknaw thav
being denuncet robelii(» be the same IVez of
hoiming quhilk was j>roducel to teriHe thai
Nathaniell Gordoun and Alexander Leith war
denuncet rebellis And farder the h&n\ James «
Gordoun snd all the remanent geotletncn
being in the Innes at that tyme war altogidder
inexcusiible because it is granlit that they war
to ye number of fy^^ gentlemen nominutim.
by Vther geiititmen qutui war in the housse and
double number to ye rebellis And sua soulU
haif concurrit togider for rcFerence and obe- '
dicnce to his ma*teis kwis aitber to haveappre-
hendit the rebeJlb or to baue made warneing to
the cuntrey to apprehend thame The place of
HassiewaUis bemg within the parochin of
Aucbterles quhilk is ane inland pairt of ther
cuntrey and populus, and ane number of gen-
tlemen within the samyn quha aucht and-
sould haif concnrrit with thame for that effect
jyk as bis ma'esteis aduocat acceptis that p^rt
of the alledgeance quhilk beiris that a servand
of Robert Colleis being without was nocbt
sufterit to enter within the house that ny't
quba beinif fric of ony violence roy't bane
bene dircctit ayer be Robert Collie maister of
the house or be James Gordoun or ooy ane
of the rest of the genttll men to haif maid
waiming to the cuntrey Lyk as tlie
said James Gordoun and all the rest of
the gcntillmen being w*tin ye innes that
ny't ar altogidder m excusable because al-
beit they pretendit the schuiting of tha
durris zit efter the rebellis went «o bed in
ane seue-rall chalmeri thay war obi cist to tsc
exact diligence cc»n forme to the act of par-
liament Ik some meains or vy Vtn hulf ceasezed
irpone thair airmoV quban they war sleiping
or to haif ramforced the cb aimer durr with-
out till the countrey fsould haif beine ad«
verteised at the \cht sould haif waimet the
cuntrey in the moirning quban they went frirth
bol nane of tliir was done And qV as they
pretend Tiolenee thay can not be hard * Quo*
* oiam nuJluni fuic lignusi resisteticie' and.*
14S]
38 *C M ARLBS 11 . Proceedings a^ainai Ahx. Bhirand othcn, { 1 44
0f ttie Jaw * Mctu« nwi e3rt?u»at niai mefiif
' sit jostoimus, noi ettitn probnndu!i est/
Aod ill the crtmitialtfts tmtdes ^* quod conctiio
«tiftm prubula nmi oxctisnt niii slatifii pofet-
<]iiani qiiifl liberiilii* «st t» vi coAeliVa denuri-
cmvcrif* An U hn^netWxe c<mdu*Ut be Fario
qiit ' r.3J*, 39. -10, ntifi 4t
«Ai* r'i na moir pnnlr>neutile
Hor ' ^'1* \iQ^ uf
ib^r :ir*reof
tflt^%CJT «fl |r iriJi-v •■• kjHtlilk out
of ifiicfstiouri yak will nntl uf ane
tift^> f.t,fl .li^^! Am! 7\t <urhc as i«
pi J 2iDd a(!lis uf
p'h I iL ^ of all tf>ir
pretcnccfl JamcB Oontonn wns tnnist t^iiltie
add ecrald net hatie bene clatig^t be lb<' satd
a«T$e Nuther uf his tirst iuteirunmjonin^
agailist ye ijohilk yalr in nathing' alled^t bt*
iwahl i^'foirknawled^e q*]k can uocht ^cuise
liim of the law qnhilk only ref(nir«j knaw*
hi]' r* vR seciftid inter-
eiiL vvitliin ane niyl«
to I ■:-■,■.:-], lU<?
•ftrr <;r rnairl ni takirt of resistance
bot idl u^i^.. . - L wi!lin|;^i{?« fatniliaritie ami
. ttfectionn and mnin\ na intematioun or vndr-
9ien\r t(i the coaatn^y and Iveing a pcrsmte
aitspectcd and cakin he the marqueis comniU-
tjoun »8 suspect iMM nocht haTcbene clanget
^f mtercomraoninjsf qlk he himseW cotifesait
with all the cpinliteie and circtira '-lances aftnr-
Wd And {Tit the wilfiiH and tememrinns pro-
Aiding ctf ^le aaayse in clangeing' of him be
tmi pnnenfched lit alloi^ed and appnyvio it
Willimpo^rta heaviepreparatire to the tirein-
dice df ye ptibhct p€ac« and to hh Imdett^rs
amtnjfiue and oah'eie with it a prfK^lamtttioun
6f a fieirftdl lit»ertie to all his nm'l^ts subiectit
to fmenvQinniotlin ^iih oppm rcMIes in the
Bfligt ^blicit rebelliouD qMk eYetierad aqbiect
imild Mktt and dt^taist m re^piSt iv'«f aU
ilf» itidif fllMireinces cucht to be t^lH aad
Htm dMgr ItMd r«leirant and proven Le the
Wflll (iMtucei^ttd yeaamjii dtttay reft^rrit to
Die kiKWl^dg^ df tivenlib |lersoric« accoirdhii^
to ye a^ of pariiainefit And that allanerlie ana
Ikr IB iii« mmkytt o«n]»iatia inf^cto quhilk is this
duly poytil?]^. Ttm the ^ rttih y' probatioun
iiledgfd in ye dfU^ to half bane proriucet in
the first proces for verifiootmuii of that dittsy
a^inst Jamca QtmliilD was dr J net a prodiiast
at thift i> iw agfthls ym\ for that effect*
Tii# >o^ioe evMAewia thia dyet to ¥M^J
iMnir t)ie]c?ui of DflDember
cHinft the [If rtooes an pamidl la ifid wm*-
kmn fcr y> re^trioy^ aaiM Iff iday of Dtt*
mat j\
etmiher imtant rik mfmmw
•he tliou!iand tnmia For «ibf«fi€im ^t'iif
iSdfitptiint James Ch^ne of Aniad|^ mad }m-
«tfti« catftioiin fnr ye htirdsa of Lf^ntork Birkin*
W^f Pctt<'m«:if Mr. Mnffjn^ Inniif!T*den tbe
pVfd Itiaii <' f(k<i erf
Elstk and h. ^ywtttc
GeOTBfc (iJordtnin of Netrti
O^JItie of lilas&iche V*^ i
AWxiMitXer Keith wf l>il4Fii« and ih«? ^
under Kc'ith of Dufltitc betvime eh^
yeeulri^ of yc aaid John Os^ilvie ui»«l lujll
remanent paiwiftea vpon paniicU t nder ye jkum:
fo'rrsQifl*
The ppnsonea of aaayse wamat apud acta
ilk |»c'P0One vndar the pabe uf ana tlioaaaaid
pundts.
ClRU
prf'fi
D. N.
Iteipa tents ia
*^tnbrr» 1635 [•er
uW et Jiicobimi
iifatos.
Uiran'
Amjw'^t^ acxmael «f ErroV ContitMnrit tA y a
MorHethe IQlfistanto.
AUtamhr Irwing^ of Letitfirk.
Alcjrander Buneruwn f^^* Kkirk*
AUxundtr Abercr<fi i i kiaU«ig«
(jcttr^c Ggrdonn, ot ^ u.
TT7//d«ie Sattoun^ of ScheathyD.
Ororge Gordotin^ of TuUiecho^vdiew
itiArt Ogilvie, of Glassache.
Jiimet Scatonfy burges of Aberdeen*
Chnrl^t Steven Lixter, hurges y\^
AtcTfiniierKcUhyoT Duffus.
JIfr. MaUto:o Luuwiiiden buries of ,
deen, ^
Hector Ahcrcrumhit of Fctter-neir.
Dilatiit of ye error oomniittit be thaiiH; id
temerariua acqutttitijt of James Gor^miti
to Ooorge fTordocin of liOgyaltonfl in
5pe*itio ycdittay.
PcneicQr,-^\T Thomas Hope of Ci
knight barrouathis MaVis ^^li^^^cat
Preio^n in tkfenrti.'^ Mr. iames Bairrf — Mr.
ThofiBos Nicoltoae ytmnfor^^^Mr John N r«het.
The panndlis takis mstrunAtHtis u^
Hfttrie and jf'lesiis for y V cautioneris relicC
Itisdnplytthe Mr. John Nisbet » prola>
fifT ye mnineU^tlie reply maid be hk piaias^
ti«« adiioGat lit the last dyet of jis proeet
Tlcgtya Aitt«yis tiatker rdevMit ritw piori*
ttnTm re^mmm Mredi^ AtMueet Atid i|*r ii is
replyrt be my lord atbocac tJict maibing is la
be rvmitttil t* ye a^f'ora bot cnty to cag^
tinsea dll/^fo <|oKidd(^ ^if ^iicti wrhtis ail4
nratotioim xrwt ^bai^m to ilie 6rsl insym ll
bdsplyH that Hie Aetmetng of vg estttttlf in
Hqmmng t«i ninvrofis and noMe uuBwmfrym
h ooot tb^ flMnr io«M *mW eogsoiii «r iW
i|*ik h Tndenyable «tid is oWiniia m^ }txlB«>^
br wKy fam B«rt tlait lb ay aonld try <fii1]i<mr
llbedrfdiaitfiaiMooat fa tbe irst aaVr-^ v- ^f
Ibii cNwiH ta ypona tbame matttlt t
Inanrfwti^ of *n minr»f>ll hu irtiMt <p..
ofeiuis' ^ofie ta
rict »i . it uh^^umi
and r|ii^hi<
thf kiranki
pfT99ifteg gift paouaU ait 'ii€<)iui Wuit^turi
>*
mpon a ProeM cf Error*
A. D. 1
[1«
mlftilliebefaiiorftnd purtmll mcatics For
iJUbeik vpone the smme evidences sctiawin to
ibe fir«t BM^ff? It sMkl be fnml lliat ttiey Hni^'
•isquilati * it tliey finil tlmt
tbiiy hail iie ami tetncrari-
if Mnt poantobct lie ihe lun ni
gif ttisy beperswai ' ' *' ' i!«ey Imu n.»: f. us-
noerntlie and «c^ ynir conscience
aii itiy lord aclni>c. *^s af'kiK»'Al^*!i;^f f
For gif tlmysoiih) ^ mi
excuse ii ^^^ i'/tHu
nochtco
vpoaetlt
excuisei
ol^ tile u*
slrnvne
re ot tern
r l»u the
iiuatinqr tl«al iIk-
gniBtof igouraui en or h Doclit yc j^rmrjt oC
tm^oryaut ooil fault f>f ascyaV^ seVingf aocht-
wlthstiiuling the t' > ''y nxay Ijc
|iat to Hue If fit irns purticji
J^Dling yV fault ar i«- It |i lit :ii : ^ v/-
ted|fe Ami qtihalr as it iK iTplyeii w
«Au I'res et' inlerccjrarnoniutr prtHi"! ri,- iiH
iniii^ witliout di&tiiKiiotni qiiliiildfr
foir knawlecl^e or be Kiirpryi*e And
that ye law reqnyrins^ icimiiam it is imperti-
ncQt to BOperad pretcujitiam $ioce ibir kuaw-
ledge IS only probable be oath of partte i|uha
wald ei$te rodeftme thanieseltlis with ane
Otlh And be y*r impuuitiij to incurradge and
inlioldfn ftheris to ye lyk prartbes And
*ft»tr iUe justice repeliet the <leience pro*
for James Grirdoun that he w«s J*ur-
fryivd and occiuiidfiaihe a^dg^ ivithout
foerknowlfd^? or trystitia^ It is snt'rit y*to
thai ' rlinmetit i5ti7 is expres of
try.^i lo fbrtliie rtbellis And most
intcrpri'ii nu- re:u of the aetis and Vtez mmi
y'lipoiiit seiog without absurditip thny con
tiocht be undenitMid viherwaylg Aud scitrttia
in sens* can not impnirt a cry me ivirhout uiil
and ttiC«titioDti (juhilk ia argued ho foirknaw*
ADd tiocht be suq>ryses of tbea^^e rpilio ar
|M>wprful] Ajad with quhome puirteis nr
ntat to interteyne discourse or ioconsidp*
ratlae or TntihristianJie to be yVawin TnnrtJur*
aha lie imtalinsr robellis and pri*'
eiwiadeatit And the impWDitie f>
tiocht KtiA coiiftitlcrnhle &s the danger i4^^^ati
stibieetk qiiha may be invoWcd Ue surprp^oT
nMlis Its thousandia of thamc has bene in \e
Iftit disorderis Atid yair is not only heir Iht^
of fbe pairtie acciisft hot a pregnant
Bptinun from the rclicllis koawin prac-
^lort-T>'--- '-•-" --».— <is AndyepanneU
co[ti< ihtiv come to him
5» '^ — - , . ,!i;it he could noclit
■>'.' being bodm wiih pi%toUctUfi
< <ntf it is ye only ground of dit-
ii|(n«nf)i bim iiithout ouy vtbc^r eui*
lid nocht ha if lit^ne tati« mm 1 la t lie
Ing^ adrainided with the former pithUiiip^
tiouii And nJi cbrimtiaue juclge can candenine
A pairtie <H)fif«'«aiD{^ intfixtiinmonuig^ a^n^
ypouc
CQtildMiouii Kun qualifci
I flitliklad m hia fay or v
VOL, XI.
^nantUc ad-
1; prcsump*
tiouti and his great oaihe And the jtirf<r<^ ^n*
terlocutoV reprlling tbe foirNaid d»tr 1
l)C ohtruidet Bcvaits the justice b+
jiropper judjje of the rclcv.
ye lelevuncio qi]biddcr or n
ditl^y albeit releiaitt in lh<*
ildcr
s ■ - • '
dyttit of t-i fin
iiilcd^iog' ti ia
his j«ist dclenee and the justice sould remit 1
to ye knawtcd^e of ihe an^ise thea^ qualtteis j
It war absurd to think that he had repeTlii
thaine m irrelevant in law het'an** Ue h^a re- ;
ferrit thame to Ik; try it br ti
And qV as it ia reply it be to
ye quaUteis * wilfullie' or * >nr
takin altematiue confirme to t!i <
of the act of parliament or vtherv^ jms i^ imiui**
imply incr wUlinghe Tbe repetilioun of wit-*
tiiighe war ane 0^'="^' ♦"i»«r.i..<rv> Vr^.i tii^t y«
act of parlia m en t e i ti
dilaitiDgc of ye relj _..:.. _„ , ^. ^ 1 arao
in accidcDtall surpryaes as 10 roeittings pur|«j«
and that ye Urst dittay waa alteniatiue and
thaiae evasiones nocht alled^t and in ane at-
ternadre aense admittit to &e knawledge of ]
ane assyse and conforme jMyrto thair dely- '
uerance wiis altematiue 4^ duplyit for tlia
pannell tbat we repeil v> former oxisV evince- ^
log frome ^n&^ law ainl rcasone the ropulattuct
sens* of the act of pari iani ' ue takiflv
of witiinglie as it presuppo IJie Aoa -
we vrge my lord ailuorat i^u uv muik** in con-
science That parteis kuuwin to half bene stir-*
pry^tand vtolenced f'>r ■• • *- ■ '^ ■* Is evident
tbat mony in ye bit fl ^le force!
to g-eve y> purser; to . -u.. . c . .. sould bo
puneist capitallie for upeiking' wuh him wit*
tinghe albeit it be constant that it was ;tgnini<t
yaif will quhilk is ordtn^ in statutes and in tlio
nctH of jnitliatncot And the tautologie and
'jiitie of wonlis q'Ikia ar nochi con^'
le in wnsidcTatioun of yre cruell ah-
li^a'ditte or jaw sould vtherwayis he bmndit *
with and tlie exact dilligenco requyret be tli^
ui HiaTnent argucth net that ye qunlitin
<i .lid irapoirt tbe cryme utimercom-
li iiout will and intenlioun And the
^ I ne^hgence ami oniissionn of pair-
tii^ ..i.i ♦lib not relevanthc commissioun and a
i:T\me qnbilk cannocht 4io without a wilfull
ftpri vnu vfrrui* intentioun previous and inier-
I te act of cry toe ChcilUe seing th^
«u , J the rehi'lli,^ waft fmiecci«ar elilof
protcriptjoun and yuir recept and randievoua
HI Rolhiemay waa nottoV to >e magistrtiitii
And coii5(« quWitlie yair being hi the cuntrey
ncridit not to he tfvtiiiiul hxhtWe the aUematiuo
conceptiomi of the jndgcs ' ijf and of
ih^ abyyacss delyuQran^ be u** t/i iha
act of parliaineiil reuJht^fc 1
lioim / *
"as'
147] 33 CHARLES II. Proceedings agalmt Alex. Blair au J oiherM, [148 J
conscience tliay thopflit thamesclfiis obleist to j
conceive it And vpone thair conceptioiin of it
to ucqnit James Gordoun of iutercomniouinj^
uittiu^iie as it im|K>rlcs a crymc and the noclit
pro()oncin(|^ of the foirsaid defence v|K)nc the
disiunctive* sens* of the act of parliament can
not he obtriiidit Becaus the (littay ^vas con-
ceavcd of intercom moning g^DcraUie without
thease qualitcis And it was vr<^ct be ye said
Mr. John Nisbct as prolo'r for ye pauncll that
it was imtlnvant nocut expressing thease qiia-
liti'is proj>oscfl be hiiu copulatiue as (ho proces
will schaw and it was nevir doubt it that it
could be takiu vtlierwayis And (["r the dispa-
/itie of Waiter Hay his intcrcomnioiiin«i^ with
James Grant is reply it frome the difturent <pm-
liteis tiie aiic beinj; ane passen^^er the vthcr
resident in the cnntrey anil a Gordoun pre-
sumet to i'auour the relrellis of his name and
IV'alttT Hay bein'^' ane honest vnstispect man
and knauin vnfreiwl to Januts Grant and James
Gordoun knawin to be ane ilai^^itious man fylet
be thnmcselftis of slauchtcr and pcrsewit be
the loird of Frcndrauclit and put to ye home
for non vndcrlying ye law for soirniiig and
denuncet rei>ell and c'tcnit in the I'rez producet
to vtM'ifio the rebellioun of the rebellis with
wliomo he intci*commoned and tane be my lord
inar«picis and sent in choyncs vpone dilatioun
inaifl of him as ane perturber of the coinitrie
It isduplyit y'to that ye parrallcll of the tna
caices is i'nstancejtix) evince that the best subiectis
may be necessitat to intcrcommoun wittinp^lie as
>\ alter Hay without incurrin*f ony j;u;it or
pwnischment and y'foir the (jualitie wittinglie
without ^lillinj^lie cannot reJevantlic infer a
cryme and thaisc disparitels was nayer vrj^tt
nor constant to ye assyse And as for the dis-
purilic in the poynt of aboid the ane beingf bot
^iie passinirer the vtlier ane resident it is not
considerable tliease that ar resident i)cintj^ als
obnoxius to surprises as vtheris and the lust
fcir of residentis beni'j^ moir impressiiie and ex-
ciiv:tab!e Not only in respect of the imminent
\ iolence ^if thay had untymouslie bewrayed vn-
towardnes bot in respect thay souUl haifexposcd
lhaii!r«:e!flislolliediiyl:epray ofreliellis And lor
the dispwritic uf yair lyfc ar.d probilic it was not
vr^^rr ai;il liie panneiliscoiivictioun of slauchtcr
as it v.'i..!i( atis the assy so is frome partialitie
in rrspi ot thyy coiiviclit him of ar.e mair ca-
jiilall cryme than intercominoning sua it can
found a presnmptioun cf ane cryme altogidder
diO'erent seiisir the reuiibsiuun'of the pairtie
interest and letter of slaucs producet to yeas-
s,> se seliew tliat (ke slauehter comittit lie him
was rather be fatnlilie and surpry^e in liis de-
fence as it was \T:i^et be the sui.l y.lt\ Jo'n his
prelu'r than vp^nf^ toirihui.'.il fellotiie Ani his
former l\ie beiu^ vnknawin to thir geutilnun
Jiow i^ipannellit as they will depone vpone y V
couscieiiees and nocht iK-jnjy traducct be my
lort] aduoc it couhl not vncharitairiilie be pre-
suniet to be ilai<:itious and the IcUcr of lioirn-
iii£; .conteniiijT James Gordoun liis denuncca-
tioun was not vrtret and coateins na sic thinpf
uatbcr cau Walter ilay bis fgibaequeat loyallie
and dini<^nce in conVooating people to persew
James (inint expiat his witting^ iDtercom-
u)oning {^if it be a cryme as it is not nor Jamei
Gordoun his ne£r!i]crence to doe the lyke be tna
ag^ravat seint^ intercommohin^ with tbe re-
bellis and uocht apprchendiDSf of thame ar dif-
ferent crymes And James Gordoim was only '
indytit ot' intercommoning' and his omissioaa
in noclit deluiting caii not be rcspectit dler
notto'r kuaw ledge of the rebellis being in ye
cuntrie and harbouring^ in Rathiemay And
qnhair it is replyit that the defence proponet
tor James Gordoun that bis intercommooing
was not s|ionianeous bot forcet cannot be re-
8[iectit becaus it was repel I it in tbe firet pro-
ces and because it (luaurattes only to pui]ga
his secund metttin(>; othair bcin^ na act or tio-
lence condescendit vpone at hLs first meittin^
and becaus it is contrair to his denoaitionei
qualifeinjnr pre^nantlie nocht only tiis will-
in^ies bot iamiliaritie in bis conrarenoe stay
souppin^ with the rebellis and lying w't
the rebellis in ane chalmer without ony men-
tioun of \ i (deuce It is duply it as of beroir that
it uas re|iellit as inept to stay the pannell Itoiim
going to ane assyse Bot nbcht to vindicat tbe
pannell beinqr fundin eiler tryall to bait* bcaa
violenced seing in law and nature Ju$lut waiu$
is ane irrefragable defence admitted in the
most bluidio inquisitiounes and amangst bar-
bares And his first meitting was purgct be ye
said Mr. Jo'n Nisbet bis prelocutor in respect of
his surpryse and iustfcir quhilk in law and
conscience '* non solum potest sed debet CA-
dere in constantem virum/' Decretalibus de iit .
qui metus cansa ca|).4 . Itequires not neceaiairilie
a present act of violence foot is defynet in law
'* nistantis vel futnri nericuU causa metus trepi-
dctio" L. 1. if. quod metus causa As h at
leuth evincct in' our former ansV and in tbe
pi*esent caice Ifonre rciloulttcd men armct with
pislolcttis micht haif quelled the maist coo*
stant and loyall man being alone And lastlie
the pannell *his last meitting is at lenth tIb-
dicat frome being wilfnll as is cleir be our ana'rie
And quhair it is rcplyed that the assysoni ar
tyed to judge accoirdmg to ye probatioun de-
ducetbe<bir thame and not according to yair
prifat knawlep^e seing the act of parliament re-
quotas that all probatioun sould be vaet op-
piulie and it sonld convell all justice gif judges
vpone pretext of yV privat knawledge souldba
licenciat to judge at randome and that the
testimonieof sonie ofy'rawin number being
vpone craleit et ex auditu frome tliaise that war
teyntit with ye lyk gui(t could nocht baiff bene
sntiicicnt informations to the assyse aeiif
Koliert Collie and ilol>crt Dempster fitt
ipdiomc tliay had knawledge was denumxt
rebellis in the same Trez producet be my lofd
adnocat to veritie Nathaniell Gordoun and
Alex'r Leith y air relK'llioun It is duply it that
quhan ane fact is only proven be the vertficn-i
tiones adducet and the qualitie purgeing Ibn
fact and cryme as that of necessary dmnce
in slauchteris constant to assysourea in j>
prirat knawledge tbay sould judge aceoirdi^f
p'
J49]
upan a Process of Error.
A. D, l6BU
fI50
to yair awin |»rftppcr kuai»le«lge since lliay ar
atlestet »s witnehs* anil lUair leHtioiuuie is
€omp;ail4e will* itje verilicatiout^ aclUucct To
atlii'ini: lliaL tjit a jiairtie convict be ijie depo-
•itioneiior witnes* of slauctitcrsaulil relbr liim-
■elflo ye knawkd^e of ane as^yse viz. that
W iiad eomitiitlcd it being luriuus or in bis
jiwiii ilefence it war absunl to afliraio iliat aoe
assyse in»y nacLt a^quitt vpooe yair avrtn
knaulcil^e of thcase cxpiatorie tiualileis And
the act of parliament ref^nyremgp |>robatiaun to
be diMl licet ojijiinlie disbatjfes nnl assysoures to
tiitncs tliair knnwledg-e qulian tbey ar in closet
bot ^irovydes only that all inlbrniulci ies to ye
assyse aitdncet be yair paifteis souUl lie rfeducei
pubiictlie Item llie teslininnip of the assyson*
albeit super nnilita my't haif ane ^u\d and
warantuble informative be ibeassysoni consci-
ence quha :ir not tycdtn extraneous probalioun i
And ar [irolialionn yamesclffisi aiuHtie rebf lliouo
«f DeifijistcL- anil Collie cpiliilk iny't liaoe rao-
dered yair tLiilimonic sospitious was not vi^et
to ye tirst assy^ lie my lord adtioeat and ye
dispute be ye panncfl his pr*j*r bcires tlmt
tbey war vnsnspect iiicn and Ibaii war not
braodit (o ttie paiinifbis kna>vk'dL''eant) yclVez
ibaii prodnuei bdoir tJtanit' boirnubic tbin^
And qiihair as James Gordoun b!»Todetitifu]ije:(
is atj^f^ravat in respect be joy nil with ibaoie of
ye bouse it is at It-oth ansv**eirit M'oir and i|*r
as it is vrgel that aii^ sen and of the house be-
ing scboie furih iny*t liaue bene direct it be
iames Goi'donn to aduertr-is the eimtrey hh
«hijdyit th:il beintr detenit u'lin he could not
haif penetrut itic durto ^e\(Mlirectionn .Ind
CoUiet^nnm bis fait can iiocht be imputed to
James Goidouu and tf r it is reply it tbaf*- nul •
luiii fuit si^niim viokucie et' resistencie et
qnod coactio uou libtftat n'lsi denuQciaito se-
ijtiaiur'* It is ans'rit that in law nocbt onlie
viz* (]ulvilkiE> relative to ret^istnnce Bot ^* Jnstus
luetus e^cusat quod metus caum*^ qubilk is
not only ** oh presens nericulom setl foiurom*'
And tlie instance of blak itiaiti in rbe paying'
qr*of oaiitciy albeit violenced ar eiccnset isooclit
€onhidemb!e bec;ius ibepayerisof bbk niajll
inaketh ane illie^a and voluulai fraciioun with
rebelbti quhair a*i tbey may schelter ihanie
selffis IVome yair viuleuce be a retftit ia ike
cmitrie xlntt implore the protection of the king-
and counsel! and tbair is great oddls behiix a
pi-eseot surprymnjr and imminent violence
atid a vohmlar li^ witU relidlis and a *>ufferring
of thauie tn reave herrie and oppress tbair
nichtbor*s with yairknawlc(f;:c and m tbair si^lu
w*lbout resisiancc or contrudictioun as ibe act
of pariiament anent blak maill btirls and payeris
of bbik maill ar lyable as suppliearis ot rc-
beilis be aue has' tribute In respect q*i' of
it hi evident that the diltay k nawayis relevant
oocbtwitb standing of the replyis maid be the
lord aduocat and the f|ualilje v^'uiiigbe wiiboul
viJfullic cannot impoiri a cry me Kpeiriallie se-
ijilj' wiuiny:lic is liot anes meniionat in ye aelis
of parliauient viz. the act of kin^ Ju. the 6
par. 7 id anno 1540 Qnbair tt is joynel with
the wot'dts reccpt defeud sapplie maateaxie or
due fiiuouris, and not with intercmnmornDt; in^ |
the actes |jrohilicittin^ inlercommonins;^ q'lk
re<|uyres wdliilnifs and iutentioun be ye woriU
presume to take vpMin haniL as is alreddifl
scliawin And the act of pitrliament of king
James the fu'st his third [iMiuisient qubilk i>s tha
ground of all the rest of the actis a;»'uiuj>t i
ccptcris and manleiaeri« ol rebeliiii iM^jres tha
ua man sail i-ecept or manteane retirllis wilfnllifl
and makis no meutioun of wi(iiii«i|ie And
y'foir seing ** posteriorcs Ie;;es ad prinres |»er«-|J
linent vbi ag-itur ile interpreiiitioue^' ft', de I
gibus L. 28. The foii*<aid act of necessite n»o<fJ
tnler|)reii all the subsequent actis of that na<^
tureiii a sen's consonant with the commou^J
law iriid reason e.
Tlie J nstice c*tioewis this dyet tn ye morn*
the 11) instuutis and uiditnis the pannell to tin4 j
cautioun fur y' reeiiliie vnder the panes Bp'cit
in ye former actis set doun hL-ir<aneut.
'I'lie caiilioneris foirsaidii« t noil be ye panncll
ilk the hisl act beings personiiallie pr'ot becaui*!
cautionciis tor ye pannelli* re -en In e ibc saiil'j
xi\ of Dec^ember inataot inder ye panes futr*
said is.
llie persontis of assyse watnit apnd act^
vnder ye panes foirsadis qrSpoue my lord ad-
uocat ask it innlrvmenlis.
Curia Jlstiljarie, S. D. N. Rej^is lentaiu Pro-.J
toiio de KdV decimo nono 1 let'em la i«!
lo33t l*er Mai^ros' Alexaudi inn Cnlnile et
Jacolium Rubertoun JuslicianosilepnUtius.
Contiaewit to the saxt of July nixt 1036.
Iniran,
Alcvander Irteing^ of Lenturk:.
AlcjiiHiicr Bancnmm^ of Elsik.
Atevantkr Abetxroinbie, of Birkinlioi^.
Hector Abcrcrmnbic, of Felterneir,
Alcxutiiter KeifftyOi iJiiffus,
Witlinme. Seatoun^ of 8cheathyn.
JohtvlfgUyir, of (f lassache.
Gcorgr GorJtmn^ of Tilliechowtne,
Geor^f' GordoitJi^ of New toun*
Mr. j\Ia(how Lumwkdcn^ burgees of Abcr*
dene.
James Seatoujjf burges yair.
ChairlcsSlevin Lit^fcr^ biirges jair.
DilajtH of yeerror commiltitbe tbamc in tba j
temerariMs and uiU'nll acquitting of Jamtj t
Coi<l(iun of 3e wilfull and wittin|jf intercom-
iiionin<^ with the rebi'Uis c^tcnit in bis dittay.
PertfTiur, — Sir Thomas Hope of Craighallf
knyi^ht, bis ma tics ad uocat,
Pmhculon in Dejlncc, — ^Ir, James Bainl,
Mr. NisLiel, Mr, Thomas Nicolsone younger.
July 0. The justice with advyse of ye asses*
^rsaiid ofi'oiisent of ye pei'sewur cciniinewis
this matter (ulhe tirst \Veduesday of July nix to
cum lieing the saxtday ofyesabl monetli and
ordanitthe pannell to find cautioun lor yair re-
cntrie and comprirance that day in the toU
buib of Edinburgh in the bo* r of caus^ to vndci ly
the Uw tor tli& cry me ibirsaid Ilk persou«
35 CHARLES IL ProeeedingiagainH Alex. Blair and others, [IS»
Curia Justiciarlb, S. D. N. Regis tenta in
Pretorio de Edinburflrb octmoo Jalij 1656
per Ma'eros Alexaa£rain Coluile et Ju90«
Dum Robcrtoun.
Intran^
Assyse of Error c^lenewit to ye XT instantif.
Alexander Irwingy of Lentuik.
Alexander Banerman, of Elsik.
Alexander Abercrombie^ of Birkinboi|f.
Hector Abercromkie, of Fetter neir.
James Seatoun^ burges of Aberdeen*.
George Bmcct saidTer burges y'r.
George Gordoun^ of Tilliec'boudie.
John OgUvie^ of Glassak.
Alcrandtr Kcyth, of DufTus.
William Seatoun, of Schethyn.
Chairlei SUvin LilsUr, burges of Aberdeo.
3Ir. Mat hew LummitdenthurgcB y*T.
Dilaitit of ye errour committit be
ye temerarious clangeing of James
sune to George Gordoun of LogyaJtoun.
Persetcar. — Sir Tbomas Hope of Craigiiall
koy't barronet bis ma'ties aduocat.
Prolo'rt in Defence. — ^Mr. James fisird-*
Air. Tiiomas Nicolsoun younger.
The Justice coDtineviriB iQterlomiitor tp js
fyftene of this instant moneth or July - Ami
ordanis ye pannellis cauteoneris to stand ob*
leistfor yair entrie yat day Tuder ye
c'tenit in ye former actis.
151]
▼nder pane of ane tliousand merkis for obe-
dience qr'of Compeirit James Cheane of Ar-
nnf^e quha l>ecomc sou'tie for ye entrie of the
said Alex. Irwing of Lcnturk Alex. Abercrombie
of Birkioboig Williame Seatoun of Scheathyn
and Mr. Mathew Lummisden—Lykas William
Gordoun of Tulloche compeirand personallie
become souertie ibr ye entrie of Alexander
Banerman of Elsick — Compeirit lykwayis
Alex. Abercrombie of Biikinboig and become
st>ueriie for the entrie of ye said Hector Aber-
crombie of Fetter-neir — Compeirit in lyk nia-
ner George Gonloun of TuDiechowdie and be-
come souertie for entrie of the said Alexander
Keyth of DuflTus — Lykas ye said Alexander
Keyth of Duffus become souertio for entrie of
ye said Georgre Gordoun of Tulliccbowdic
And siclyk the said Alexander Banerman of El-
sick become souertie of ye said CJhairles Stevin
And lyk way is compeirit personallie Johnne
Gordoun of Inner-markie and become souertie
for entrie of ye said George Oordonn of New-
toun And last compeirit John Seatouu baxter
buries of Edinburgh and become souertie for
entrie of ye said Jiunes Seatone burges of Aber-
dene The day foirsaid vnder ye pane abouc
spe'it Quharvpone my lord aduocat askit in-
fitrumentis.
Curia Justiciarije; S. D. N. Regis tenta in
Pretorio Burgi de Edinburgh sexto Julii,
1636. Per Mag'ros Alexandrum Coluile
et Jacobum Robertoun Justiciarios de-
putatos.
Assyse of error coutinewit to Fryday ye ?iii.
Julii.
In I rah*
Alexander Iraing, of Lenturk.
Alexander Bannermnn^ of Elsick.
Alcxundt'r Abercrowbic, of Birkioboig.
George Bruce ^ satdler burges of A'b'd.
Hector Abercrombie^ of Fettter-neir.
A Uxa nder Keil A , of D ufTus.
Wm. Seatoun, of Sitheathin.
JamfsScatounj burges of Ab*d'.
Chair its Stevin Litstcr, y V.
Mr. jMuihozo Lumisden,
Gtorge Gordoun^ of Tilliechowdie.
John Ogilvic, of Glassiche.
Dilaittit of the error committit be thame
ill the partiall and wilfull clyugcing of James
Gordoun, sone to Gcop^ Gordoun of Logy-
altoun. '
Pcrxmar. — Sir Thomas Hoip of Craighall
kny't barmnet his ma'ties aduocat.
The justice with aduyce of his lo' assesso'rs
continowis interlnqnitor vpoun the alledgances
duply is and triply is and ans'ris maiilyr'lo
in this proces of befoir to Friday nixt and or-
danis the i^au'rs fund of beibir to stand for the
defenderis Tnder the paine contenit in the
former act.
Curia Justicurie, S. D. N. Regis
pretorio de Edinburgh decimo qmnto Jolfi
1636 Per Mag'ros Alexandrum Coloile de
Blair et Jacobum Roltertoun aduoeatnitf
Justiciarios depotatos diet. 8. D. N.Rqgit.*
Intran* [as before.]
Error cHinewit to ye sncii Febrnar.
Dilaittit of ye temararious and wilfull cirbr
committit be thame in clangeing of James
Gordoun sone to George Gordoim of Logyal-
toun of ye cry me cHenit in hisdittay. ^
Penewar.^Sir Thomas iloip of CrughaU
kny't baronet his ma'teis aduocat.
Prelo^rg in defence, — Mr. James Baird Mr.
Thomas Nicolsone younger.
The paunell takis iustrumentis of yair entria
and protestis i'ur yair cautioneris releiff.
The Justice continewis interloquitor zit as of
befoir to the xxii day of Februar nix to con
Anil ordanis the pnnnollis former cautioneris
fund be thame sf befoir ?iz. vpone ye 19 day
of December last ^OSo to stand obleist for
ye re- entrie ye said xxii day of Feb'r niz
to cum \'nder ye panes spe'it in ye said act
And declaires that ye compeirance of John
Ogilrie of Glassach and James Seatoun m'
name of ye rest of ye patmeli that day sail to
admittitj&c. '
Curia Jvtenanum H. D. N. Regit tetita In
pretomde Eilinb'r acxii Fi-liruafii i»37 Pef
Ma^'rum Aicxiiiidrutt] Cotuile de Blflur
Juiiicmriutti dcpulaluiiii
CoDlrair the Assyso^n of Error contioe^it to
the xjtii Junii Dixi>
Aaeot Ve criminall dyct and (tronuncemg' of
interloqurior y^intiU vpoue the aUcadga^cfs
and uii(i*ri6 midd in ye actioun and caus per-
se wit be his maiesteis aduoctit for his bet ties
intr^s aganis AleJKiind^r Irwing^ of Lenturk
Alexander Abercruinbie of Birkinboig^ Wil-
liam 8caloua of Sc I leatbyn iind Mr iMathow
Lnmmisdea burifpa of AI»crdeeii Alexander
Baiicrinan of Elsik Hector Abercrombie of
FetteT*neir Alexander Kcy^l of DufTus Ueor^i!
Gordoim of Tilliechoivdie Chairles Htevin
George Gorduan of Nevrtonn George Brtico
tiiidler burgca of Aberdeen and James hSea-
lone burccK y^ Ver ye ailed yfit error com-
luiitii Ijc tbaiue in acquittini^ and clang^eing of
Jtine* GordouD sone to Geoi^e Gordouo of
(ilKyaUolm of 3 e cr^ mc cUeait in his dittay
they being suarne and adtnitlit vpone bis
MByte a» ye suinmond and dittay of yr* wil-
fulf error y^ aueni in tbu sehf proportis
Quhilk intenuquitor and pronunceing^ y 'of was
vpoue llie XV day of July last 1636 coniinewit
|h to thir day And eautioun funds be
y> i ' n*fmes ddenderis for ye entrie antl
com|»eiraiiee iU'iH day and place to ye effect
and vnder ye |>anes spei*t in ye act maid yr*
TDoun cofiijieirit jiidiciallic sir Thumas Hope
hiacnaiesteisaduocat for his hienes intres as
pertewar on the ane pU and on ye vther p't
thejsaidis per«oDea defenderia being oRytoes
calht to haif compeirit perHonallie and enlerit
Ibametdffis vpooe pannel at tbay that fatjd
cantioun for ^t re -entrie and coropeirct this day
and niiice to ye tWect aboue uritteo, cornpeint
]^r.l^)bert !*«'•,,. ivryter in name of ye haill
defenderia ;Lt u And nruducet ane act
ofyebrdis v, _l coimsall daiitit at £din-
byrgh the liaxt day of December last by past
ordanio^ and commanding his maiesteis jus-
tice cl«frK and y^r depuUiti to coulinew ye aaid
dvet to ye tuentie tua day of Junii nijc to cnm
of ye q'lk act of couuaell the tenuor folio wis :
** At Edinburgh the saxt day of Doeerober
sceir of God 1 ra. vie, threttie tax yeirea
anent theiiiippUcatiouu presentit to ye lordi» of
1*^ LSidi be Alexander Irwingof Len-
in ^selffand in name of ye remanent
^* ijiMiirpi wbowarsiimmond rponethe aasy^e
tit' ei'tor cttncerning- JanitH Gordonn foakand
€ntioun That qnhaii- it it nocht vnknawin
the Miidis lordis <|ubat great and heavie
ble ft?»it expend* the anpphcantcs hes sua-
tcnit besydc ihe nt'glect ol yair adocs at home
by ^-air lang attenttance vpone that pmces
And llow ut \Afii efter mony cxintinuHtionen it
WM COnlmeHit to ye liiriHic tua dny tif Fe.
Imiir now approachjng c^Mk ia > me
And to ▼nMsaaannable for tmvelt ye
IKkrtho hdr that it will hr^ ms<m ,^ fg^ |{te
•npplteantit to keip that dyi l i : ^' ct of ti)e
VOU^a
of the zeir q'tk it ever mott Tttteaaoo-
ablo at thai tyme And the far distance of tb
place being abooe four tcoir my lea thmn tb
bur^h the way being 6o delp and fonle wid
tuo itrrreyia and ane number of watt«m and
tnontanen tnteriected As all travelling at that
tyrne will be at that tyme almoat impotBtbl^
and the ait seid begynnc& at that name tyni«
an<l seasrme the ne^lectrng qr*of wilt Tndoelhe
maist puirt of yr supplicant is and aetng tbay
hu»i nevir^'bwQued yr* tryctl but erir oStred
yaniesettiif y'viiut iM ane legal! tbrme and
incLncr allowable l>e the law is of this kiBgdOHM
bumldie dc?syreiug y^foir ye saidis limlb ••
giue oonmiaud lor present procca or vthcrwayf
10 prorogat tlie said dyet till the tuettiie tu
day of Jnnii nixt lyke as at n^air tenth hn
tenit in the said sitpplicatioun Quhilk
re<l hard and cotiaidilerit \h* the satdis lOfd^
and thay weiH ad^ysed ySvith the kutKii wf
aecreii coiinsall ordanis ami * ' V's
ma'teiii justice justice clerk i t
to cmtinew thccrimlnall dyet aoum: ^^ <.iu;ii rdi
tht^ tuentie tua day of Junii nixt ami to di»«
pence wiiii the satdia RopplicanttM ihair
peirance rponc the said xxii day of Febnu
fhay finding new cautioun coniorme to ofd<
quhuir unent thtr preseutessall betothamaane
warrand And the saidis lurdia dedairet thai
sail nu prorogatioun be ufUrwardH gran tit m
this matter ordaning in ye meane time hit
nta'ties justice and his deputti^i with the lord
heigh thejMiurer of this kingdome and rema-
nent attesio*ra to his maiesteis justice to
[>ei*Tse aiMl eonsidder ye pmcet And to get e
furth yair interloquitor ibairaoeot— >Exlra<?tiiin
de libris actorum secreti consilii 8. D. N . Itcgia
per me Jacobum Pryttirois il^ w'^mj
sub meis sigooet subscnpliooe k».
"* Sic SubicnhUmrf J AcoBi>» i m ..i kuis J
Accoirding to the quhilk act and ordlnanrr^
of a«cret oounsalt the said Mr. Ilobert Patrie in
name of ye person es defenderis ulvoue writtin
ik^yret that the dyet aboue tnentiontd ap*
poyntit to this day mychi be eotittntwii beve
justice to ye aaid icacii day of Junii nixt lie
justice tor obodteoce of ye taid act of coaotall
and ordinance spc^rt y'intill continewia tbia
dyet witli all pronune4.'nigof ioicrloqmtorin the
premi&Mia to ye aaid tuentie tua d.i i
lilx tu c u m and ordan it ttautiou n to U. i
dcfenderis aboue fi[}e*it that yai and ilk ^lul ut
thame tall compejr befoir hi^ marcAlief ju».
tice and Wis deputti's in ye tolbuith of EdiQ
burgh the sajd xvii of Junii nixtmnim ut y
houre of cans to heir interlmpniour pt ontmcc
iu the nreiuiasis and to vnderly the law ^or the
eiroralmMe writtin taduriha patust^pecitiet in
yc former actii owid Itt tkliB ff90m Cm-
{M ii il \ utri'tler ya p«rfiouL« r#*j»utictiua fotlowtllC
MlMr.ltV ,df ^
' ttoun tor \i uwia
of Leniurk aod Mr« Muihut* l^imtuHdatt ]
entrie and com|>riraiH^' ye aaidtaday i
to ye effect and vnder the pane aboue 4
CVm|»eintaliO Mr. James CJieyne i
1531
33 CM AllLES II. ProcealitigM agaiiut.AlfX, Blair and others. ^ISG
caxxdoMT for Wm. Leatoun of Scheatbyn and
George Gordoun of Tilliecliowdie and obleist
him to enter air'er of thame ye saidis day and
place to ye effect and vnder ye pane foirsaid
And siclyk compeirit Mr. John Abercrombie
wryter and become souertie for ye entrie of
Alexander Abcrcromlue of Birkinboig And
llectur Abercrombie of Fetlemeir compeirit ii
iyk manor James Keytb writer and become
cuiitiauer i'or tJie entrie of Alexander Keith of
Ditfius And siclyk compeirit Alexander
aaidicr bi]r;>:;>s of Abenlcne quha l>e h[» band
1»roi!uctt \-o Mr. John l*ai
lis proV daitit ye xi
souertie for ye eutrie of George Bruce saidler
And Mr. ilobert Vdnic of I^nkming;toun com-
peirand be his obligationn [iroducet be himself
daitit the tuentie day of Fehruar instant, be-
«ome caution for ye entrie of tlic said Chairles
8tevin Litster the snidis day and place in the
boure oi' caus io yc effect for ye causis and
Tnder ye pauis aboue expncuiit.
wrangus acquitting^ and clanpfeing of James
Gordoim sone to George Gordoun of Logyal •
toun of yc wilful! recepting of ye rebellis callit
the licht horsemen and intercom moning with
thame contrair ye actis of parliament.
Fcrsewar-^lr Thomas Iloip of CraighaU
knyt baronet his maicsdes aduocat.
The persones on pannell askit instrumentis of
ye entrie and conmeirauce and protestLs for
ye cautioneris relcif.
The Justice be warrand of ye lordis of secreit
o - _ , ^ counsall conforme to y' lordshipis act and or-
..IWzouuger aduocat ,,i„^„^^ insert yairin of yc da\t xxvil day of
of *ebr mstaut become j^„jj j„^^^„^ j^^^^j, ^^ j^^,^^ ^^^ j^^j,,^,
minall proccs led and deducet in yis matter
anent ye error simplicitcr Quhairvpone the
pannell askit instrumentis off ye ql'k act of
connsall the tennour foHowis :
Apud Edinburffb vigesimoseptimojanii Im.
vie. xxxrii — ^The lordis of sccreitt counsall hare-
ing hanl his niaiestcis justice justice cleric and
justice dcputis, and the assessors appointed to
them be the saidis lordis for advysein^ the procei
led and deducet at the instance of hn maiestics
aduocat ajranis Alexander Irwing of Lcnturic
and vtheris gentilmen ivho war criminallie
convened for anc assyse of error And liarcing
considcrrit the opinioun and judgement of the
said justice and assysors foirsaidis tuiclieing Ibe
relevancie of the lybell, and of the pxccptiones
and answeiris maiii y 'rto in behalf of the pan-
nell And being weill advyset yairwith the
saidis lordis being lothe to (f^ve forther in this
bussines ordains his maiesties justice justice
clerk and justice deputtis to desert the dyct
appointeil to ye said laird of Lcnturk and vtheris
mentionct in the crimiuull Prez and nocbt to
proccid ouy farder thairin Dischairgeinc'lieirby
the justicre clerk and his deputtis of all directing
of only Trez at yc instance of his maiesteis ad-
uocat againcs the saidis personis vpoun this
ground and caus iu tyme they re*
ceave ordour thairauent be a publit.! delyvcr-
ancc from the tabill rpihairanent and
the haill prcmissis, the extract of this
l)c to the said justice justice clerk and thair
deputtis a suOicicnt warrand — Ex'tractain ds
libris actoruui secreti consilii S. D. N. Regis
per me Magistrum Gilbertum Prymrajs de«
riciim oinsdom sub mcis signo ct siibifcriptione
niaunalibiis.
Sic Su bscribit iir^ M G . I*R Y m rose.
Ci'RiA JusTiciARLE S. D. N. Rcgis tcuta in
Prctorio Bur^i de Edinburgh, vige&imo
sccundo J unit 163 r. Per 3Iag'rum Alex-
anulrum Coluille ct Mag^rum Jacobum
Kobcrtouu Justiciaries deputatos.
Intran^
Continewit to yc 28th of Jnnii instant.
Alexander Irzoing^ of licntiirk.
3\Fr. Mat how Lumisdail/^ hurgesof Aberdcne.
William Scaloun, of Schithiiic.
Alexander Abercrombie, of Birkinboig,
Hector Abercrombie^ of Fcttonieir.
Alexander Keiths of DufTus.
James Seatouu, burgcs of Aberdcne.
Dilaittit of the error comittit he yame in
fl^ngeing of Jamrs Cvordoun sone to George
Ciordoun of LogyuUcun for yc rcceptiug of yc
rrbcUis callit the light horsmcn specifeit in liis
ditliiy.
Vcrseicnr. — Sir Thomas IToip of CraighaU
knyglit baronet his l\lu*tcis aduocat.
l^rdocutor in defence — 3Ir. Thomas Nicol-
sone yoiiMi^or.
TliVjn St ires with advice of his ma^teis ad-
nnt^t cuiitinrwit the interloquitor vpoun the
alloflf^anccs and answens maid in this proces to
^Vc-dncs'.l.iy next the tuentie aucht instantis
the personis vponu pannell ilkane cautioner for
vytli( ryuir rcontrie that day vndcr ye paiucs
spccifeit in yc former act.
Intran^ eodcm 23 Jnnii 1637.
Assyse of J'>ror Dessertit be warrand of ye
Icrds of secreit counsall.
Alexander Irrring^ of liCnturk.
Mr. Mathow Lumisden, burgcs of Aberdene.
Jamei Seatoun, burgcs yair.
Alexander Abercrombie^ of Birkinlioig.
Hector Abercrombie, of Fetterneir.
William Seatoun, of Scheatbyn.
Dilaittit of ye error comittit be thame in ye
[AUhougb this CASK of .VSSYSE of ERROR
is not, under the apparent abolition of that
process, likely to fornk a prcci?dent for future
prooi'LMlings, it seemed to me to be on several
accounts a \ery curious document of Snots
legal antiquities. I ha\c endcavouixN] ex-
actly to exhibit the strange orthography (if
I may so say) of the Record, not only as to
the vernacular language, but also in the au«
thorities mentioned and passages cited of fo-
reign authors. As to the incorrectness of
the antient Scots Records of Justiciary, see
a Note in vol. 10, p. 881, of this Collection.]
157] Proceedings agaimi the Earl of Lauderdale, 4 c. A. D, 1682, 3. [I5S
329. Proceedings against Charles Earl of Lauderdale,* Richaku
Lord-MAiTLAND his Son, and others, for Official Malver-
sations respecting the Royal Mint of Scotland : 34 and 35
Charles IL a. d. 1682—1683. [Now first printed from tlie
Privy Council Books at Edinburgh.]
XHE fullowing Narrative and Reflect'ons con-
cerning this Case, which occui* in 1 Fonntain*
hair« Decisions, throw much Ught upon it :
November 3, 1681.
*< A commission came down from his Majesty
to examine the accompts of the treamry, how
the King's puhlic money hath hcen spent, and
employed these several years byiyone. This
was principally levelled against Ualton Treasu-
rer-Depute, because the most of these who
were named auditors of their compts, were none
of his friends.
* lie was brother to the duke of Lauderdale.
Sec his Case, vol. 6, p. 1025. Lord Halton
appears to have activelj^ co-operated in the
mal- administration of affairs in Scotland under
his brother the duke, as is set forth in the fol-,
lowing two articles published in the Coltectioiv
of 8tate Tracts from the year 1660 to the year
1665, published iu 169'i :
•• Some particular Mutters of Fact relating to
the. Administration of Affairs in Scotland
nnder the Duke of haudtrdate. Humbly
offered to your Majesty's Consideration, in
Obedience to your Royal Commands,
" 1. The duke of Lauderdale did grossly
misrefirescnt to your mayesty the condition of
die western countries, as if they had been in a
gtate of rebellion, thongh there had ne^er been
«ny opposition made to your majesty's autho-
rity, nor any resistance offered to vour forces,
nor to the execution of the laws. iBut he pur-
posing^to abuse ^our majesty, that so he rois^ht
carry on his sinistrous designs by yoirr author
rity, advised your majesty to raise an army
ai^inst your {leaceable subjects ; at least did
fnunc a letter, which he sent to your majesty
V) he Ki(;nc-d by your royal hand to that effect ;
whirl) bi-ing sent down to your ci»uncit, orders
was thereupon given out for raising an army
of ei;^hf or nine thousand men, the greatest
port whcnM>f wcrp Iligiilnnders; and notwith-
atanding that, to avert threatening, the nobility
and tjrcntry of that country did send to Edin-
burf^^li, and for the security of the pence did
offer to cn^iisre, that whatsoever should be sent
to ]iot the laws in execution, should meet with
BO affront ; and that Uiey would become hos-
tages for their safety : yet this anny was
narched and led into a peaceable country, and
did take free quarters according to their oom'
t
May 8, 1682.
" A commission having come down for try-
ing the State of the Coinage and Mint, to duke
Hamilton, Perth, Tweddale, Athol, Soutliesk^
the Chancelk>r, Register, general major Drum-
moad, Gordonston, Balie JSaird, $cc, allenemiea
to Halton, general, and to sir John Falconer,
master of the Mint; they proceeded, while
Halton was yet at London, to take cognitioit
by the declarations upon oath of all the mem-
bers and officers in the Mint ; and it is nid sir
John Falc^er in hopes to liberate himself, at
least on promises that it should extenuate bia
missions, and in most places levied great sums
of money, under notion of dry quarters^ anc}
did plunder and rob your subiects ; of which
no redress could be obtainetl, though com-
plaints were frequently made : all which wert
expressly contrary to the laws of the kingdom*
*' 2. In their quarters it was apparent that
regard was onlv had to the duke's priTate ani-
mosities ; for toe greatest part of tnoae |ilacefi
that were most quartered on and destroyed,
had not been guilty of the field com^enticlea
complained of, and many of the pWoet that
were most guilty were spared upon privata
considerations,
*' 3. The subjects at that time were required
to subscribe an exorbitant and illegal pond»
which was impossible to be performe<l by
them ; that they, their wives and children and
servants should live orderly according to law,
not go to conventicles, or entertain vagrant
preachers, with several other particulars ; by
which bond, those that signea it weremaifa
lyable for every jnan's fault that lived upon
their ground.
*< 4. Your ipajesty's subjects were charged
with laborrows,denounood ridels ; and captions
were issued out for seizing tneir persooi upon
their refusing to sign the aforesaid bond ; and
the nobility and gentry there who have evt^
been faithful to your majesty, and had appear- »
ed iu arms for suppressing 'the last rel)ellion, ^'
were disarmed upon oath. A Proclamation
was also issued, f'orl»idding them u|>on great
penalty to keep any horses above four pounds
ten groats pric<».
** 5. The nobility and gentry of the ahine
of Ayre were also indicted at the imtanoe of
your majesty's ailvocate of very bi)|rlici'
and misdemeanors : whereof some did ^
tre:ison. These indictments wen
them in the afcniog, to be woawmadhj tlN
1591
94 CHARLES II. Proceedingi against the Earl of LauderdaTe [ 160
•WD ff\n\tf did ifo great lengfths to load HaltOD
With misdemeanourii and lualventations, by in-
Tcnin^ihe king's part of the emolumenta of
tlif> S(r<)ts Mint to his o«vn private gain. 2.^ In
the next morning unon oath : and when they
did demand two or three days time to consider
ni dieir indictments, and crave t)ie benefit of
lawyers U| advisi* with in matters of so high
coucemment ; and also excepted to their being
put to sviear against themselves in matters that
were capital, which was contrary to all law and
justice; those their desires were rejected,
though the like had never beeor done to the
greatest malefactor in the kingdom. And it
was told them, they must either swear instant-
ly, or they would repute them guilty and pro-
ceed accordingly.
*' 6, The nobksmen and gentlemen knowing
themselves innocent of all that had been sur-
mised against them, did pm^e themselves by
oath of all the particulars that were objected to
th«n, and were thereupon acquitted. And
though the committee of the council used the
severest manner of enquiry to discover any
seditious or treasonable designs, which were
pretended as the g[rounds of leading in that army
into those countries; yet nothing could ever
be proved : so false was that suggestion con-
eeming a rebellion then designed that was of-
fered to your majesty, and prevailed viith you
for sending the aforementioned letter.
** 7. The onpressions and quarterings still
continued. The noblemen and gentlemen of
those countries went to Edinburgh to present
to your council the heavy pressure that they
and their people lay under, and were ready to
ofier to them all that in law or r'^ason could be
required of them for securing the peace. The
council did immediately upon their appearing
there, set forth a proclamation requiring them
to depart the town within three days u^mn all
highest pains : and when the duke of Hnuiilton
did petition for leave to stay two or three days
lunger for some very urgent affairs, that was
refused him.
*< 8. When some persons of quality hnd de-
dared to the duke of Lauderdale that they
would go to represent their condition to your
majesty, if they could not have justice from
your ministers ; for preventing that, a proda-
roation was set forth, forbidding uli the subjects
tu depart the kingdom without license ; that so
your majesty might not be acquainted with the
liaid condition of your subjects from making their
appUcation to your majesty, no less contrary
to your majesty's true interest (who must at. ^
ways be the refuge of his people) than to the
natiirul right uf the subject.
*' The turmer particulars relate to the inva-
sion of ihc rights of great numbers of your
subjects all at once. What i^iiow, have in -
deed only fallen on some single persons; yet
are siwh, that vonr whole |>eople apprehend
they may be all upon the slightest occasions
brought under the like mischiefs.
<* t. The council htth upon maDy occa*
making the fineness below the standard. 9.
In coining 17,000 stones of cornier moneys
beyond the quantity contained in ins Majesty's
two warrants for the copper journeys: 'all
sions proceeded to a new kind of punishment,
of declaring men uncaimble «f all puUic trust ;
concerning which your majesty may remember
what complaints the said doke made, when
during the earl of Middleton's administration,
he himself was put under, and incapacitated
by an act of parliament. The words of his
paper 8g[ain8t the earl of Middleton are [an-
capacitating] was to whip with scorpions, a
punishment to rob men of their honour, and to
lay a lastmg stain upon them and their poste-
rity. And if this was cononlained of, when
done by the highest court of parliament, your
mi^ty may easily conclude, it cannot be dona
in any lower court But yet notwithstanding
it is become of late years an ordinary sentence
in council, when the least complaints are
brought :^in8t any, with whom the duke of
Lauderdale and his brother are offended.
** Instances of this are :
** Tlie declaring thirteen worthy citizens of
Edinburgh uncaj^le of public trust, against
whom no complaint was ever made to this day,
as your majesty will jierceive by a paper mora
fully concerning that affair. The true causa
of it was, that those men being in the magis-
tracy, that duke and bis brother could not get
a vast bribe from them out of the towns -n
which was ailerwards obtained when they weia
removed.
*' The provost of Glasgow, Aberdeen ani
Jadburg[h were put imder the same sentenoei
for signing a letter to your majesty in the oon-
rention of the boroughs with the rest of that
body, which letter was advised by him who la
now your majesty's advocate, as that wliieh
had nothing in it which could bring them nil-
der an V guilt ; and yet those three were singled
out ol' tlie whole number, and incapacitated^
besides an high fine and long impruonment,
as to your majesty will more fully appear by
another paper.
" Sir Patrick Holme, of Polwortli. btioff
sent by the shire of Berwick to complain M
some illegal proceedings, and t'^ («btain a leffil
remedy to them, which he did only in Vbm
common form of law, was also declared un-
capabie of public tru9t, besides many mcHitha
imprisonment.
*' The provost ofliLuIythgo being complunad
of for not furnishing bome of your forces witk
baggage horses, was called beVore the council^
and because he said they were not bound m
law tu furnish horses in such manner, he. was
inimeiliately declai-ed incapable of public troati
and was both fined and imprisoned. i .
«' There are also tifty of the town of'dBfc
Johnstons incapacitated u|>on a very slig^
pretence, so that its very iutpossible for them
to find a sutiicient numncr of citizens fiur t||%
magistracy of that tovn«
and atkers.for OJfn^I 3Tafvcr8ntionB,
A.0. I
t!61
wtiidj iitruckas machjfnotmore, njainsthiro-
*e]i'n» nm^tcTf than against Halloa ; yet lie pre-
iiuiiu^i biHopeontssaiid iiigffuwty woulih>rOfure
him favour. Wbeu Ilatton came from Londop
" 5. Your subjects are 8oin dimes upon
fttight, and lonietimes upon na groutuN itti-
jiriioncd, and olkn kcjit prisoners many niontlis
and jear«, notliing being objccte<! to them, and
r lire I'eijiiirt'd lo enter themselves prUoiicTS ;
which is contrary to law. It wiis "m die former
article cx|iies*td, that many of tliesc inrsons
declttrod incajiable of public trnst, did ^Uo
DulftT iiiipri»otiiiient I and besides these in-
stances, lituicnt^nt general Drunniiond (whose
eminent loyaUy aiul t^rcM sevtices an; well
known to your majtsty) wasrequind to enter
liini»elf prisoner in tfie cjstle of Dunbarton,
where lie was kept one year and a bnlf ; and
vr^A made a close prisoner for iime utontbs of
that time, anil yet notluniif vias evi>r objected
to him to thii» day to justify that u?^»iye.
** The lord Cardro^s was for his ladies^ keep*
ihfif two conventicles in her own bouse (at
Mnich lie was not present) fiocd 110/. and
hath now b4>cn kept prisoner four ycum iti
Ibe castle of Kdinbur^, wbcix? he still remains ;
ahlioui^U he hath often pftitioned fur bin li<
berty ; and hW Patrick Holme hath been now
a xeofiud tmie ahuo«t one year, and nothinf^ is
yet laid to hi6 charge.
*^ licside:; ttie^e illegal impri.*!oni»eiit^} the
oncers of your fiiaje?jtie« forces frequently
'carry warrants with them for apprehending;
persons that are under no legal censm^t i**'*'
' luira been so much im cited lo appear ; wbich
I hmth put maoy of your subjects an<ier ((reat
' fan), tspecuUty upon what was done in council
tbfve years agr* : ca|jtain Carstair« (a man now
wdleDougli Known to yaui- majf&iv) clid in-
IrapocM Ktrktoim, an onted mioitierf into his
chamber mt Edmburgb, and did viulentty abuse
I him ; and desi^cS to liavi; extortetl some
I jnaiiey iiroin btm : the noise of tliis eo(uin§: to
tbeeanofone Bailey, bi-oiber-in-bw to the
■aid Kirkton, be came to llie house and bearing"
I bim cry Murder, murder, force* I open the
chamber door, where he found his brother-in-
law a4id the captain ^plintf ; the captain pre«
tended to have a warrant o-^ainsl Kirkton
and Uaity desired him tofibew it, and promised,
that all oixHiicnce should be ffiven to it i But
Ibe captain refusing to do it, Kiiklon was res-
cue<l, Tbi»i wa« only i!e1iv**niig^ a man from
Ibehandiiof a roy. ' * naluro *»tihi,'eth
all men to do ; esp* ' u joyncd with bo \
Tic^a relation. Tiie i,ii>iim compltiined of
tbii to the council, and tli*. lord Halt on with
others were apiKiiuttd t ■ -' n^^ tbe wit-
I neaacs: and when it w; licfore the
t-onr,<-il the duke of Ila;u..> ..., . . ; is of J^rcre-
fri^ce and Kinkarden, ihv. lord Coche-
; sir An I»i!^^ld I'riLiiroM', then
kli0r<! hat the rcjiort of the
lemu d ; but fbrit tiot >rr-
UlO^^ r : ■, ■■.,,■.,■.,, .^, v,-/e
VOJL XL
in the beq^inatDf^ of July ^ they proceeded very
summarily with biui^ and ur;^cd him to depon«i
as the rest had done ; he refused, seiing na |
man is bound jurati in projtriam iurpitudinem 1
Carstares did not shew any warrant, nor wa
cloatbed with auv public chnmcter, it was no j
"- waa ^
I«'" lui>i iiiiwi iiJ yj^\jy."'j iiiai iv^ •4Um *\'-i'k. 'OOtf %
piisouer.
" Those lonls were upon that so tiBpre^cnted I
to ynur majesty, that by the duke of Luudcr- 1
dale's? procurement, they were turned out of 1
the council, and all couimnnd of t!ie militia.?
And it can be made appear, that the captaia
had at tlmt ttnic no warrant at all against
Kirktou, but procured it aiU?r the nolence cjm-
mittL*d : and it was ante-dated on design to j
serve a turn at that time. This manner oif |
prt<cc€*liugs hath ever since put your subjects
under H;id apprehensions.
** There is one particular further offered (» \
your majesties consideration, concerning their
way of usinjj pmoners.
*"* Tb ere were 14 men taken at a field coa-
veatich', who without being" legtilly convict of]
that or any other crimes, were secretly and
in the niixht taken out of prison upon a ^vanaiil
siy:ned by the enrlc of Lynlyth)tyo, and the lord
Uattftn and Collioglon, and Were dehvered to
cnfitain Maytland, who had been pa^ to th« i
duke of Laudenlitle, but was then a Frencb
officer, and was making his levies in Scotland,
and were carryed over to the service of tbtp (
French king in the year 1616.
«* S. The council hath upon many ocea^
sion^f proceeded to most unreasonable and ar-
bitrar}' lines, either for sbght otlences, or for
offences where the fine is regulated by Jaw, .1
whu h they have never ixmsidered, when tho
{jersons were not acceptable to them : so tho
oi d Cardross was fined in 1, 11 U, for his ladies
keeping' two cotiTen tides in his hou^ and
cbristmng a child liy ao outed minister without
his knowledge, liie provost formerly men-
tionedy and Baily with many more Were al^o
fined without any regard to law,
^* The conned Lath at several times proceed-
ed to the taking of gentlemenii* dwelling-bouset
from them, and putting garrisons in them*
which in time of jjeace is contrary to law. lo* '
the year 75) It was designed against twelve
of your m^^esties subjects, and was put In cxe-
ct it ion in the houses of the earl of Calendar,
the lord Cardrosse, the lady Lumsden, Slq. and
was again attempted In the year 78, tlte
houses l)elonging to the leirds of Cosnock,
Bhigati, and fcowal, and were posse^ned by
souidier^, and declared garri^ouH, TNor did it
rest there, but ortlern were i»ent fmm the coun-
cil, requiring tl»e countries alx^ut tbo^ohouscn,
to funuih them for the sunMii i^^ u>r. ynd to
vutipty them with ni < try
lolaw. It was again uck
Holme came to desin? a rttutxly ; ami v Jin-
mon juitioe being denied hiiUf he tisei a k^^if
34 CHARLES IL Proceedings agaiiut the Earl of Lauderdale • [164
the rest, that he might knotr what tliey bsd
(Ie|ioneil ai^ainst hiin ; but craved that he might
prive liis juramenium purgationis that he waa
free uf these luisappl ications which the fmup^CM
163}
w1:orc the case may he criminal, Dor to accuse
hiinsi-H*; hut he guvcinareprescntatiunof the
biate of the Sliiit ; they refused liim a heai'ing',
or a si^ht of the process, or the testimonies of
pruteslatinu in the ordinary ferni of law, and
. \t as thereupon kept for manv mouths a pri-
soncr, and declared incapable of all publick
trust, '^c.
**■ There is anotlier particular, which because
it is so odious, is unwillingly touched : yet it
ifi necessary to inform your majesty about it ;
for thereby it will appear, that the duke of
Lauderdale and his brollier have in a most so-
Icnm manner broken the publick faith that was
given in your majesties name.
'' One Mitchel being put in prison upon
great suspicion of his havine attempted to n^ur-
dor the late arch -bishop of St Andrews, and
there being no evidence against him, warrant
was givrn by tlie duke of Lauderdale (then
3'our majesties commissioner) and your coun-
, cil to promise him his life if he would confess ;
whereupon he did confess, and yet some years
after, that person, who indeed deserved many
deaths, if there had hcen any other evidence
af^aiust him, was, upon that confession, con-
v.'cted of the crime, and the duke of l<auder-
dale and his brother being put to it by him,
did swear, that they never gave or knew of
any assurance of life given him : and when it
was objected, that the promise was upon record
in the council book's, the duke of Lauderdale
did in open court, where he was present only
as a witness, and so ought to have l)ecn silent,
threaten them, if they should proceed to the
examination of that act of council, which, as
he then said, mifjht infer perjury on them that
swore : and so did cut off the proof of that de-
fence, wliich had been admitted by the court
as <,^ood in law, and sufficient to save the pri-
soner, ifprovcd. Thus was that man hanged
upon that coiiifsbion only, though the promise
that drow it iVcni him, (loth appear upon re-
cord, and c^n be pro\('d by good and clear
evidcrn-c. Antl from tliis your majesty may
jad;^* , ^^liat cTtdit may be j»iveu to such men.
*' >V»' do not at p.-tsmt enlarge on other
j»arl!c-'ilars tliough of great importance; such
Its inoL('.p<>lios, s( llingplac rs uf honors, lumi/ig
men of known int«>gnly out of tlieir imploy-
int^nts, to which they nad a good and just
right during their lives : the profits of one of
the most considerable of these, being se(]uestered
for i:ome lime, and apply ed for the dutchess of
I^uderdale's use : the treating about, and re-
ceivin«,»"of jrroat bribes by the duke and dutchess
of Lauderdale, and the lord Hatton, and par-
ficularl}' from the touns of £dinboroug[h, Ab-
berdeeu, Lynlithgo, and many others, tor pro-
curing: from your majesty warrants for illegal
im))Ositinns witliin these towns : the manifest
and |)ublick [KTverting of justice in the session :
besides the most signal abuses of the mint
and copper coin, that are most grievous to all
jour subjects. But the uumber of these is so
fi^ *4 the J will require so many wit-
nesses, to be brought hither for proving them,
that we fear it would too much trouble your
majesty now to examine them all : but your
majesty shall have a fidl account of them af-
terwards.
" One thing is humbly offered to your Bla-
jesty, as the root of these and many other oppres-
sions, which is, that the method of governing
that kingdom for several years hath been. That
the lord Hatton and his adherents irame any
letter that they desire from vour Majesty to
your council, and send it to the duke of Lau-
derdale, who returns it signed ; and this is
brought to the council : upon which if at any
time a debate ariseth concerning the matter
of that letter, as being agdinst or with law ;
and when it is proposed, that a representation
of that should be made to your Majesty ; then
the lord Hatton in his insolent way, <^ls to
have it put to the question, as if *it were a
crime to have any warrant either debated or
represented to your Majesty, which is procured
by the duke of Lauderdale or himself; and
this is
echoed by his party, and by this i
any further debating is stopped.
*' There are some other particulars relating
to these heads, that are to ne offered to yonr
l^lajesty in other papers, w liich are not added
here, lest 3'our Majesty iihouid now be troubled
with too long a paper.''
" The Impeachment of The Bake and Dutekeu
of Lauderdale, with their brother my Ltrd
ilatton, presented to hit Majtsty by ike
City of Edinburgh. The matters affmci
particularly relating to the town qfJSdim'
burghf humbly offered for your Majestm
information. Before thematteroffaethe
spoken to, it is necessary that your MttftUw
be informed of one thing upon which tkm
whole affair Itath moved.
*» The citv of Edinburgh had at several times
given con^idei-able sums of money to the duke-
of Lauderdale, amounting to upward of twelft
tliousand pounds sterling, and tne lord HattOQ,
brother to the said duke, being inraged by tint
their former practice, and hein^ arrived to
great height and influence in the administralMia
uf your Majesties affairs in Scotland, did thera-
upon resolve on a design of getting nHoiiej
for himself also from them, as will appear to
your Majesty by the following narration ; bat
the magistrates at that time, and such others
as had then the principal influence in the de*
ministration of affairs m that town, being ho-
nest men of good fortunes, and not to be
brought to comply with his design^he be»
thoug^ht himself of all ways to vex them ; end
knowing they did much value the prosperity
of the town, be thou^it that the first meeae
for promoting that ms design, was to have
them threatened with removing your Miyealial -
165] 9ni alheti, for Official ^Mvfrsatlcns,
prohatio loaded him with. His i»bjecli*ms
a|;aiitst sir John Falcoiier-s df^poninf^ against
hirn ar<j 1. InimtcUia 2. lie is comciui
€rmini$que sticiu$, 3. lie depojit^!; to liberat€
A. D, 1682/
flS
, ^uhliqttc Jttflicahira from iliat city tr>8tcrlin,
and pers evaded hU bi-olht^r the diiUe of Loiiiler-
dtkle to move ynm Majesty to that purpose j
but belo^ disappoiril<^d of that firoject by your
Majesties royal wisdom, your Slajcsiy looking"
tipOD St as IT it were to declare to t!ie woild
tnat yon were jealous of so great a part of ihat
jour ancienl kingdom, he br^lhoui^lit himself
of new ways to accomplish his dcsljijn, f\i\r
which he judged nolhiup^ so proper and cflec-
tital, as to distuHithem in the choice of i!ieir
,iiiag:islrates and tovva-counsel ; and hy nil
meaos possible to get some of bUown cbu'siiiiM;,
lit for his own ends, brou^htiu to the admmis-
tration of the affairs of that crty. Tti order to
which, being^ impatient of any longer duhiy,
he laid bold of what follows, beings the first nc-
j cosion tjiat offered, though a veiy frivolous
' one.
** At Michaelmas 1074, The said city of Edin-
burgh beinsf to go about the election of their
magistrates for the ensuing year, there was
procured a letter from your majesly to your
jtrivy CMunsel commanding theni to tbibid the
iiiajjist rales and town counsel to proceed in
their elections, !)iit to continue the magistrates
thai then were, till yrwir Majcsty^sfiu-ther
plcflsure should be knovin ; tbV reason su^-
I Ifcsted to your majpsty for it, was taken from
this circamstancej Tfiat the elKction ou^ht to
he made upon the Tuisdny affcr Michaelmas,
sud (it happening this year that Michaelmas
fbll to be on a Tuesday^ they were resolved to
proceed to their etecti<uls w^Kyn Michaelmasj-
day.
** Though this was a very saiall maUer, and
upon Tcry g'oinl and prudent ronniderations
resolved, as will afterwnrd appear, yet was
it represented la your majesty &£ a factious de-
iriy^, and an innoratioo of dangerous conse-
f|uence, tending' to create and maiotairi facliori
in that city, contrary to your inajpsties service.
Your majes'lies foresaid letter Ix-in;^ inti mated
* to the magistrates and town counsel, they did
Immediately give e%act ohefhcnce to the same.
r •* They did also represent to your majebties
privy council, the rights thai ihtry had lor
c busing their own magistrales, which httd
lieeo granted to them by many of your majcs*
ties royal aurcstors, and confirmed by many
jiarlinments ; by vertue of which they humbly
conceived: they ought to he suffered to pmcceiJ
iu iheir **le<"tjons.
** They did also represent to your majesties
imvy council, the reasons which had moved
theifi to resolve of making their elections on
the said Ttiesdny, being Michaelmas day,
whicti in short were, that liy their constitution
they were obhj^t!<l upon the Friday bvfoie Mi-
chiielmns, to make if^e list out of which the Ma-
gistnttcH arc to he chosen ; aftor tin? doing of
whicli there is a surcease and vut::tUon of all
and exoner himself. 4t To elicit ilii» deposi- ; i
lion from him ae^ainst Halton, tht^re were pro- *
mi»es of personal favours to hiinself ; which ii ,
the highest degree of bribery and corruption.
ordinary courts of judicature within the l^mTi,
and the whole time is spent by the commuu
j>eople and tradesmen of ibc town, in rioiiu^ .1
and drinking, uotil the elections lie finished^ \ {
which in I his case would have been twelve '
ilays ; which they did in prudence think they ,
ought lo shorten, not conceiving it eontrarv iit ^
the least to the established rules of their elec-j
tion, ,
*' On these things ihey did humbly cnivi*
your Majesties privy council would be pleased
io represent lo your'majesty, that thereby they
might be freed from theauRplcion of any fac-
tious design, with whicli they were charged
by the said letter.
' ** This being, through the influence of the^
lord Hatton, refused by the jtrivy council, they
dispatched a gentleman lo the. dtike of Lauder-
dale, with letters and instructions full of res-
pect and subniission to his g^race.
" The gentleman at bis first arrival found ^ J
duke Lauderdale very kind, and was mad« ,
believe he should he quickly dispatched with ^
answers according to his desire ; hut soma ^
delays having fallen in, the duke of Lauder^
dale felt likewise upon thoughts of getting mo-
ney tVoiD ttie tov^n upon ihls occaiiion, audi
therefore pretending still more and more kind-
niina to the said gentleman ) hu did first by '
some insiQuatiims let fall to hito his expecta- ^
tiou, and at last flatly asked him if he hati not'
brought a heavy purse with him ; whicli
when he understood he was not to expect, ho .1
changed his method, and grew haishcr ; and ^ j
having dctaincn! him live or six weeks*, he th^ ^
said duke entered into consullallon with his old
friend sir Andrew Ramsey, how to order the^l
affair. By his advice he did write a ktter and /j
sent proposals to the said town, That they^f
should give bond and security, that tba
to\f nsmen should lire regularly us to all mal-
ters ecclesiastical in the largest extent, as thO|l
same is determined by the late acts of parlia- ^
ment ; and to keep the town free of all sorts ^
of tumults, either of man or woiuau : Judging .
that this was impossible for them lo perform, J
and uofavoui-able to attempt, and that there-
fore it would oblige them to make offera of.
money.
** This letter was all the gentleman could
obtain, and having gone back to Scotland and
delivereil it to the magistrates, they were so
far fi"ora lieiug carried in the design,"tbat they.]
were glad of that ojiportunity to witness their']
zeal to serve your majesty ; for they did very
heartily comply with what was proposed con- *
ceruing the bonds and securities iteomnded;. j
and immediately urged that your majesties'
officers and lawyers would cause draw sucU 1
bonds and securities as was fit for the purpose ;
uffenng good security for great summs ofu
ney for lie performance. But thii ll^i<. Wvcq
16T]
34 CHARLES IL PracudingM agaimt ike Earl of Lauderdale [ IQS
Tbea he gave in bis defences why he was not
liable. 1. Because be had exom*ratioris and
discbarg^es from his Majesty. 3. Because he
was pardoned and included in the general act
the tbinff truly intended, their ready coni(>li-
ance with it, set them yet farther of! from their
desired settlement, an*! served for no other in-
tent than to cause the lord Hatton to double
his diligence to find out new means to mollest
them ; to which end it was alledged by him,
that tliey hud of old forfeited Iheir privileges
and liberties by some great misdemeanour, aud
that therefore they had not right to cbuse their
own rj.kgistrates, for which he would needs
have tliL'ir ni-ords searched ; and accenliugly
they thL-mse!i es, with their books and reconls,
were in a most unusual manner brought oitcn
before him •mm\ his friends, though they had
not authority for it, to the great di&turbance
and aanoyuuce of the citizens, by beuig abun-
dautly j<'J;ous of their liberties, were with uo
smallcare kept within the due bounds of mo-
deration, by the loyalty and vigilancy of their
inagi>traie9.
<* Thcv the said magistrates, finding how
they were used at home by the lord Hatton, did
again appiv themselves to*^the duke of [jaudcr-
dale, both by private lettcra to the duke of Luu-
derd.ilu aiidhLs duchess, frum some of the most
eminent of them, full of assurances of particu-
lar i-espcct to their graces, and by a public let-
ter to him from the whole town council, ofFer-
ing bond and 8ccurity to him in tlie terms pro-
posed by his fore-mentioned letter. But this
could not prevail, it being c4)jected to tliem,
from some frivolous things the lord Hatton had
scraped together out of their old records, that
they bad lost their liberties, and that the riglu
of ch using their magistrates did no more belong
to them.
** Then did they produce their charters, and
did convincingly clear all mistakes, and evi-
dently make appear that the right of chuulug
their own magistrates did remain to tlicm un-
doubtedly aud'intirely.
*• All tliesc things being cleared and open,
they expected to be restored to the free exer-
cise of tlicir election in their accustomed man-
ner, 'riiey were still kept off wiih delays, ru-
lil the lord Ilntton, in pursuance of his tJebigo,
fell a praeti^ing with some few of tliemseh es,
wha did undertalLe witii his assistance* to get
such eleote<I as were fit for his ends ; where-
upon he writes to his brother the duke of Lau-
derdale to move your niajesly for a letter, and
accordingly the fetter was procured from your
majesty u|>ou the 7lh of August l(y7o ; wherein
your majesty, all.'T rcciling your former orders
in that affair, did declare, that you were well
inforuu'd t-f their obt^licneo to your commands,
and of their dutiful carriage in 3rour concerns ;
and therefore ordained them, the next day afcer
the receipt of the letter, to convcuc thcir*wholc
council, ufier their accustotiticd manuer, and
oat of the lias already made, to elect the lord
ilies, and oSiher officers.
of indemnity past in 1679. — ^Tbis was i
as a decliuing of them; and they repNellcd
them hoc loco^ seeing they could not uindcr
them to enquure and proceedper modum inquid-
« According to wliich letter, thay ^d the
next day proved to theur elections, but instead
of those whom the lord Hatton expected they
would have chosen, they did elect some men «
good fortunes and integrity, not at all fit for hia
purpose (these who had eng^aged to him not
oeiog men of that esteem or inflheuce as to be
able to carry his design as they had under-
taken).
*' The new magistrates and council, did in-
mediately af\er their election, acquaint yoor
majet*ty with their procedure, and gave yonc
mayesty great acknowledgments and assuraucea
of their care of the peace of the town, and oC
your majesty's service in all natters, both ec*
clesiastical and civil.
" The said lord Hatton hein^ ezoeediiigly
enraged at tliis act of theirs, did by advice of
sir George Mackynge, now yoiir majesty's ad-
vocate, send a letter to the duke of Laudmlale ;
to which he procured your majesty's hand
upon the 25th of the same month of Augos^
by which your majesty ordered your privy
council to intimate to the magistrates and town
council, that it was your royal jdeasure that
there sliould be turned out of the town ooancil
and deciared incapable of any public trust in
the said town, twelve* of the most eminent of
the same men with whom your, majesty had
expressed yourself so well pleased, an/i whose
actings your niajesty had approved, hy your
letter of the 7th of the said mouth.
'* This was accordingly executed by the
privy ci uncil, without ever so much as calling
before them the said persons, tliough great
crimes were laid to their charge, as being fac-
tious pei-sons, and misre])ic*sentin«j|' your oioi-
jesty's proceedings, without mentioning any
particular fact of theirs w hich could import any
such crime. And though the)' be threateaed
by the said letter to be pursued for these gnat
crimes, and that your majesty's advocate is
commanded in the same to nisist against thauiii
yet could they never obtain from your maipi- <
ty's privy council that they shoultlbc triedmr
these things, though by a petition signed by
tbc whole twelve, they did represent tlie great
prejudice tliey sustained both in their reputa-
tion aud trade, by being kept under such
tbrcalcniugs ; and> therefore did humbly oflsr
themselves to the strictest and severest tiiaL
To which petition they never received any ai^
swer.
" To make appear to your mijesty
tliese things were done for private ana a
trous designs, and not upon account of tbaill
affocteduess, or factious dispositions of the jsea,
as was pretended: your majesty is hanUK
prayed to take notice of these particolan fiC
lowing :
<' First, There are three of the most
deraUe of these very penNuui n^ hadil
WS]
tind^iertf/pr Official Mahirmikm,
Tken being soniewtmt tlifiidcut of Uie
1lLiti{j*s luJTCicJtte, on the pretooce li<5 was 8oui«^-
limea ottt of tv^n, tliey cuu^oiued »ir Futrick
Hume advoc^iie to hiuit wliu Hiiisa^i^orn enemy
eliftrt^Cil wilii so (^reat crimes, admitted since
tlmt time, hy brilun^' llie thicliess of Lauder-
lUtc, iutoauu&t iji youi' majesty's affairs iu
HcoLl^nd, more emiit^nt aiul considerable thuu
iiy Iryst ttie toivu of Cdiubur^ti can coufi^r,
itie paying otf your lutije^ty'ii foroeiv moA.
^nuioj,^ in yonr uiujc-sty 's excise »
♦» NcL'oudly, Na siiufier were these twelve
ea turned out ol' the tov^n council, but atier
limay ip-eai aiMl cssenu.ii infonaaliiie.^ (with
tbe reciuU of. which it v* ncedlejis to trouble
jottT mjijcsty) tl**y lUx-li'd lor luagistratew
ineti of no ri*|»ijUation, cither tor [nu-ts, eslaiet or
JiOQcfitv : mui though thest: bonds and secun-
lias, which had been demamied from ih« olhi^r«,
and ctin^eiUeiUto^ by theiD> was furtnerl} prt •
lijjidcd to he of grtat iiiiporl.ioi^ Iw your ma-
j^y^i» jjcr\ice, yet they were nut no ntncU as
omx; dernimdcd, k'ith<:r oy the duke ol* Lawkr*
dak?! or l\w lord Haiton, troai Iheia men who
were now ehoacfi.
*♦ Thirdly, These new magistnles were not
long io theit seats, w hen otf comes the luask,
HJuTtbtf trtic desi^ of i^etting money appears.
For by an act of 3ie town council tht^re ii; about
5,000?. ^tefhug* diHfiosed on auiongst tlieir
nameless friends, whidi were the duke of Lou-
dL'rdair^ tlic lord Hatton, and some other of
Ihuir frienih. A ^reiA sum tn be got from that
«Mty, con&idcrtn^ tliat the duke oi Lauderdile
tio^l {Tui bttons thai about Xt^OOQL slerlio^
from ihcni.
'* The duchoKS of I^ii<!erilalef did also since
that time eutltavouf Ui \fiti more moni^y froio
I w raih threaieu the
tor DoC i^iviiM^ htr a
i 11 11 the good sho s«id
liiMiK M. ' .V"ujut^ the fa%ours
: h .M Avr, tuau been pleased to
I, I , <Im L' hy hertitilf.
[ j>our towQ becA abused,
f< > lo^ magtstratea witliout
« iL^e, ia a titiMi wl|«ii the
' iienfiods 10
lit . ..■ liv and ca^
[laciU lu i>uw your ni4jw»ly,"
Iti tbe ** Aecmmt of y^otland'^ 6ricvances
by fwBwm M' the duk«? of Lauderdale's Minis-
trv" iiisf rtP'f \u ilir- <' Siiit,- Ti-ids" (privately
J harles the Sc-
- 169-^) p. '?i>0.
MT^t •*""•'■ ^'-" i^smtje is, tli« ' corrupurin
'*4fe/ IV hereof iny lord
w. LaiMiordale'n brother tf
Ibi* mmigimmik wu gvoundcd m tlie
tnveNiJ itairHiUr of tb« pg^lg ; iKJba bare
f v«#rftl ymm^ tW ilie
^ - "T coiu ia aiMisiMy dimipiiinit,
both m Ai4i H«i|(bt oodrAiitMMi to liiii noiion'it
They
to IlHiton; thii disflatUfled Ui« advoCAt^.
frame the report niiliout allowing' ' <
sight of it; luid sent rerihamltli \
With It to London ; and though the duke of
add to the resentmenti that tlie Kante tofd
itattoti havini; some years a^o tiUed the coun-
trey with a !i^! ' i ^ coiu^ without ohs^^rv-
in;4 either the *\ ' the weight and valtio
pix^ifiliLd, vvu., ii. . . ,i,,t it!a^ hv --i- )• trl Laub-
dirdftlf's mciuis secured and ud r it
i* iiJao rvrn. ni1k*M^-l, tlwit thi :„.... .;; enables
luua to t aion of our iiitvcr coia, th«
ftmcli dii I ^ J d the LeggdollorSf usually
imi*orted by our merehanti^i and current
amonyfut «» at ACt^ per picce» were cryei!
down by tbe duke of Laudc4*dAle'« procurt-
ment to 56(/. for no better reason known, than
that tiicy mi^lit be brought ui lor bullion to th<f
3Imt-hou9efor his brother's benefit : but though «
tliat uU demanded in |iarliament about thiit
mitUY was, that there might be an exaiMii-
nolioa of the coin appoiatied, and an accounl
i^ivcu ol liie bullion which hath been loi^ IM|^-
Heted \ yet tbe nu^monal given in far that
el}«ctwaa Qol regarded: it is true that my
lord Lftuderdale after the I>eceniber adjourn-
ment of thi» parliament, did move hin majesty
to write n kftter, and thereupon bring the bum«
vi^%H to a tryoj Ldbre the eooncil % but iu a
manner m partial^ that I profcv it is my a«l-
mii-ation how iiny man $iioukl have a ivinUl
deuce Ktmn^ ennuj^h for such pructice$.
sidiject of our complaint in the Ati»ck of our
current mony, and all appointvd by his loa-
jestiea h*ilLT, is that there shouUl be a try at
made iij^ofi tile e»!iay boxe^ and the piefee
thti lined: 1 shall not Kay, that the
ov* I tiof hath been altegHbiT in nijr
lord 4JU10HI H „wt, ywmer and Iruiit theaf* yeap»
hyt*tt«l», y«i so certain it i«, that tXm box or
|iixie hatb been of late ae greatly n^kcitdi
that one of mv lorda nonmiimoiieni fl^da ap»
^utad for the exatnen, eoeld oot forbear to
say, • Tliat they were niet to see whether the
' oScerskei tlii: JUint were ae iBuch IbiiWae
' tbey west suape^ed to ha knareat* but not*
withstanding^ tbiti tbe tryal goes on, and mora-
o% er the pieces are not brought to the esaay
sercniily, but the whole (wiili what mixture of
finer pieces coined and conveyed in on purpose
to compense the bascc who can tell P) is melted
down together in one mass, and thereur^in tbe
easay made, and the report thereof with some
wraall hrigots sent up to the king \ which,
pnjfing (10 be sure) according to ihr dp*ig:0(
r the confrivance, his m^esty v\ ' *ci
days M»ndH down a second ^ m
'.viiuiril,js|niilytag htssaliafiMtieii, »tiu vmung
UaCtiHi.anS. i4t real oi' tie aftam to {w ex^
oikemied : bnt wben this letter is fead, it is op.
po«ied Oiat tbe gnevaooe of the l^lint had been
I lublf^I iti u»rh :^ in. «nt, where the tryal sb^
t his lOiyttiM fin
i%la>Neiiia4^ aftte
tllf«r tall^6ed er
c a iprtMittd af ntaaa li'
Oi CHARLES ir. Proceedings against the Earl ef Lauderdale [17f
and put a stop to the coinage till farther order S
aod ordaioed his adrocate to insist against them
either criminally or civilly before the council, as
he saw just. And now since the King has ordered
them tu be pursued beibre the session for restitii •
tiou, of what tliey had intromitted with more than
they had warrant to coin, Halton, on the newi
of, his brother the duke's death, parted that
same day fur London that his sentence was in -
timate ; and a committee was named to go and
close up the Mint- house, and seal all.
November 7, 1682. .
" At Privy Council, his Majesty's Letter
was read aueot the officers of the Mint, bear-
ing, that where he had formerly orderered them
to oe pursued for their malversations before the
Privy Council, or the justice court ; now he
had altered his puqiose, and ordained his trea-
surer and advocate, to insist against them, before
the lords of session ; and in regard John Falco-
ner, late warden of the Mint, was omitted iathe
former order ; and yet from the report, it appear-
ed, that he was as guilty of malversations as
the rest ; therefore he ordained him also to be
pursued with tlie rest. — John Falconer, on the
news of it, died suddenly of crevc'tenr at Uii.
house of Phesdo. And on the S4th November
1682, the treasurer caused put up the ^ifl of his
moveable escheat, upou a report of his having
bexnfelo de se, and g'lUed it to lingh WaUace,
for his Majesty's behoof.
January 19, 20, (J'C* 1683.
His majest}''s advocate against the enri of
Lauderdale, lategcueral of the Mint, sir John
Falconer warden, and the officers of ibe Blint.
To the first article of the summons, bearing,
that they were liable to rcfound the quantities
of the copper coin wherein they had exceeded
the warrants his majesty had given them for
coining turners. Answered, They could not be
made accountablcfor this excess, because his ma-
jesty not only by two exonerations produced, but
also by the general indemnity in August 1679^'
had discharged and pardoned the same ;
neither could the exonerations be termed suIk
repiitious or obreptitious ; and that in law all
such writes and rescripts do tacitely bear thie
clause in their bosom, * si preces veritate nitan-
*■ tur ;' for though the doctors make a great-
noise of the efficacy of that condition, ' si pre-
' CCS veritate nitantur,' yet they teach us that
any of the following clauses take it off, tis.
either to insert in the write the words *• mota
* proprio, ex certa scientia, ex auimo deliberato,'
or *• ex plenitudine potestatis ;* or even the ge^
minatio actuum do evacuate it ; and with us,
by our style and practice, the docqueting of
writes to pass bis majesty's hand, the passing
them through many unices and seals, the
presenting tnem to sundry courts and indi-
catures, the recording thein in their books or
registers, the obtaining declarators upon some
of them, are far greater checks and controuls,
and more fit to purge and obviate fraud oi*-
obreption then these alore meiflioiied inventioMbS -
I71j
York had promised to Halton tliat no deter- i
raination should follow on it, till he were beard
bcfurc his Majesty; y^H a Scots Council is in-
stantly called, who on reading the said reiiort
of the coniinissiou fly very high, as they had
l>ccn tune«l, (Halton not iVing yet gone up),
and procure a letter from his Majesty depriving
him of all his places. Halton, to preVent all ha-
zard from the extremity of their malice, fomi-
ctl an ample remission of colonel Lock hart's
and his brother the duke of Lauderdale's cxon-
erution ; but the duke of York said there was
no present necessity for the passing of it by
his Majesty.
August :i\j 16^2.
" At Privy Council, his Majesty's letter was
read, against my lord Halton, and the other offi-
cers of the 33int, bearing, that he had considered
tlic report of the commissiop named by him to
try the case of his Scots Alint, with the advice
of hh Scots council at London, and found that
th;;y had malversed grossly in tlieir trusts;
and therefore suspended and deprived them all;
Mint officei*s so long as it was manifest, that
almost the whole ot the current -coin is defec-
tive and debased ; and lastly, there vras offered
a bagg of uiony lately received out of the
3Jint office, scaled with tlie officers seals,
which they could not but still acknowledge,
and it was desired that there might be a tryal
made on the species therein contained. Not-
withstanding all which, my lord commissioner
and the plurality of the council proceed and
vote an exoneration conform to his majesties
last letter. Now is not this a noble way of re-
dressing grievances, to purge the author and
leave the thing untouched ? Nay to make the
greatest aggravation that can be of his felling,
viz. The corrupting or frustrating of the
chequer tiie lK>st ground of his clearing, and
all this contrary to the reclaiming evidence of
almost as many witnesses as there are pieces of
his maji.stii's coin ininte<l in Scotland ; it being
ct^iiain that amongst hundreds that have been
(rycd, very few iiave been reported to be
standard."
And under the head of the eii^hth grievance,
^vhieh is ' The mal-ad ministration and profu-
sion of his majesty's revenue* it is said " My
lord lliitlcin hiith got in donatives to the value
of I ;>,nO()/. stti ling ; and hath moreover yearly
1,19(;/. sterling: beside ho hath the profits of
the Mint and liullion which last did render in
king James's time, 1,000 marks Scots weekly,
amounting yearly to 2,500/. sterling."
It may here be noticed that Koger North
(•ivcs hii^h praise to the duke of Lauderdale for
his ^^oveniment of Scotland. ** It is well
known" says he, '* that by the prudent con-
ituct of the duke of Lauderdale, Scotland was
iu a {Misturc not only of safety but (if needed)
i»f giving assistance to the king. No barm
could get in or out there while he was commis-
sionc^r." Ezamen. part 1, chap. 3. sect. 90.
r
anit)(kert,Jitr O^cial Malveritttiont,
173|
vf Uie dodors; and as Ibis proven t|jc vnll-
dilv of tUe exotunilionH, ^o the indcmuily
CfrtAini^ cut* iirt' ihi» pniiiUtt : Fcr ttUHieslieA
of all Ibuipp* Ai*c mtrst sacred, l>ctng land marks
aud s«?ruritifN * rmn lanccndii, lioii utovcuda/
unless hti \y>' uiih tliat blooily Roman
€m|rt?n>ir C: it the whole pe«(>le of
Jloinc roiglii ntire out one nrcU *■ ut wnito kin
* pcrcutrrct.* — See ihc (3 fib act oV paHiuinenl
J 663, and act 10, Parliament ICC'2 } wbicli
are arin i»f iiuJtMtjntl y, and exempt from it the
rueddk-rs witb the public nioncy : B^i' lliis ob-
livion and iad^mnity in 1679/b more ample
tb«n any of tbenn/ being" drawn in tbe most
ample and coraprehcasive terms dcviseable as
moioly dciiignea to secure Lauderdale and bis
party for the highland army that tlicy sent in
wi»oo tbe west io 1678, Sec, and the pardoning
ilie rebels who roB<; at Both w el -bridge was
but a sbam and colour to draw on the other.
The lords in Fairj^ and Klf's case 13lh Feb.
168*1, and in 51r. Jolin Kincaid's Ist March
1683, fovnd that tfie f;aid indeinnity did not
defend against restitution, and the civil effects
of damage and interest, but only from punish-
ment, and that tbe • vindicta j»rivaia ct publiea'
<lf>^^' ""'' 'I by the indemnity diflercd from
1 because i\ie rindicta priritn was
lliL __.:..^,^iion of goods, and I ho puhika waa
the inflicting tbe pergonal punisbment ; which
Iwij w^re only remitted by the net of indem-
nity, but nowise simple rcRtittition. A dis-
*'barge that sir Walter Seton bad got from
the king of hh intromissions as collector, did
not hinder but the exchequer forced him to
compt again ; apd none will affirm that tliis
indemnity in 1679 would defend the treasurer,
ireas4iFer depute, or sir William Sharp as casb-
ket^per fi^om accomptlng. The lords Ira-
ni' ^ ' ^- -.. , Uie parties, advised this
y MformatioiiS( andrepelltd
tU uL.tij,.^,, .» liiid tbe superplus of tbe
coinage more than wa^ contained in the king^s
warniDts, (though it could not be iostrijcted
from the exchequer rolb, or otherwbe, that
tver Ibat superpma was accompted for in tbe
exchequer, or looke«l upon aa any part of his
niajesty*ii revenue,) did not belong to the offi-
cers oi the Mint, but io the king; and that
the cxonenitiT>ns in tiieir narrative were but re-
latireto the wamiflts* and so c-ould not excee*!
them and that tbe act of indemnity did not ex-
tf I ' * procffjs, which was not penal but
/ o onlvt and for restitution. Tbe
^^ ' were ; ' The lords
founded on l\w act
ut ?>j ,iiiiiii-^ V. and t '* ' ' nds
* t ; as also repel tl nee
i ,1 it,r> ,..Mfv» .,» ♦!..-. j,j,. , ,« ., jitr-
, as a part of
?vnrnte insiiits
'■ ' I >f copper
^ < I lie war-
^ rmts ; and repi i thiit aliedjreance ioundcd on
lb*- f xunrrTHirni", and Ihid tbtJtp exonerations
^^extend n'^* in lutbi; (pjuntity allow-
t^ r^ . . . .1 V . H .ud MOt ^ iba tiuilvcnia'
^^^.extend
^^\
* lion in rtlailon to the quanliiy rx^eedcd; aii__
* repel the ailed geanoe founded on the act of
^ indemnity « and tind (he •^finitr iAtuior srcure
* the defenders froth i*lc in rextitntioo,
* * in quantum loci M;h sunt' by tbv
* profits of the (pi niiiiy ot cop(ter Coined
* more than was contuiocd in the warraiMs/ *
*' Tbe king's advocate repitscnled Io tbe
lords, that !iow fi»r tiny Itud rnadc prolli nnd
bencllt could not be the i ule ; for what if it
were not extant, but sptni in livitjg bigb,
or in playing and drinking? when on tba
lords expuniitd these words out of Ibu in-
terlocutor, • in quantum sunt Iocupk»tali j* and
made them simply liable, whether * in rem
* versum' ornot.
** Tbougli tbis debate and it& interlocutors
took up se^^raldays from tbe 19th to 26ih Ja-
nuary, yet it will not be fit to divide it, but to
give it here altogether.
•* It being further allcd^cd fur Lauderdale,
and the i;Uier o^Hcers ol the Mint, that no
more of tbe copper coin coM be adjudged to
belong to the kingbutatwelvth pari, (which is
tbe propot ttoii be has of the Bilver) and tliit
also with dciluction of the price of tbe cojipvr,
the expcnce of working, and the fees oi' the
workmen ; wiiich beiu^ dtfaJked, tbe free
excrescent and superplus profits, over and
aliove all these abatements, will be inconsider*
able. Notwithstanding whereof, tbe lords (bund
the whole copper coin made and lituintx^,
more than the officers of the Mint bad hii
lnaJe^ly*s warrant for, did intirely and in
solidum belong- to the king) without any allow-
ance to be deduced for the metal tnatter or
tbrm« Imo. Because they esteemed it *rcs
* ftiriivaet peculatus pecunite publico?.* — But if
so, then if not penal, yet it was * mixta, partim
* rci persecutoria, et paitem no^oaliK ;' and so in
part pardoned by the indemnity : \Vhich forced
them to run to a secoud ground, viaf. that it
was tbe king's ^'zirf specifitutionU ; the king'i
^anip and character being impressed on it, ne
became * domiuns totius tam maieriie quata
* formie.' But here maUria being poUntior
aud predominant, ^ ct reducibilisadpriorein for-
* mam, dominus materiai* became dominui iQ*
liux, 2do. By the R^mian law in that *• modus
* acqutrendi per speciticatioDem,* the owner of
tbe matter bad an action competent ' ad esti-
*■ mationem et pretium num materieconsequeo-
* dum.' This swcm\' i the prior mter-
locuior, and not beii ^ible in Uw ; tti«
next day, the <^iise iKMUg again called, it fiaa
insUtod for the earl of Lauderdale, that ha
l>elioovetl to have deduction of the mattpr of
tlie copper; for atn^ tbe induction of the
kijig'n irojis and impriMs Inmi^mitted tbe pro-
perty to the king, so that it might not do Jur^
m prejudice of the ^ !"* i* im!m* ♦ d * ud pri-
*orem materiam,' 'uuita iioa«
* pms «t poteutialr' u! sr ma*
* icriam bic* yet it was i\ u
of the price and valtjr i,jr
* rot non dtl>et lorv; ' :% ulu^rtu* ^'
ami tbe tndcmatiy j^- . ^ , . , . rimini^l dtj^
I
I
I
175] 34 CH ARLfeS II, Proneilngs tt^ainsl the Earl of iMuderdah [ iffi
lint^uency in it. The kiii'/s adn»cate being"
beiiteu troiii Ihe notion of «p<rciticalian, ran to
tbat uf Bcce«»ioUf that \\ became the kin^^s
/ure iicceMfOfitf, like a biyat^ j^ieMing to the
picture drawn ibercupon; and he being in
doh to tipply the kii^^ii irons to tnorc metal
tiiaf) he bud warratit fbi% he ougiit not to reap
fecoefit • exsuo delicto.* KepU^,Thai decision
id' Justinian'* wassini^lar * in picturaob prae-
' stanttam artis,* and yet it still went cum ♦ onere
* pr^ii tuhulae/ Vea, bvthe Komanlaiv, * eliam
* in per&oiia praedonis bent^tus vvsum e«t dc-
*4iicere iiiipcii»;u8 lam olile^quam necessarias*
Mri he only lost the Titlnptunrtns ; 1. L 38. and
99, U. de baeretl petit. 1, ^^i. c. derei vimlical.
— TUii lords bemjr straitened, altered dow aright
iheJr Ibrmer intcHoculor, and found the utficers
c€ tW Mint out^ht to have allowance of all
ODpfier stamped by (betu before tlie act of in-
deniity 1679, (for aiter serious coosidcralion
Ihey durst not make loo btdd wUh the loosing^
vi' this act of mdemnity,) but found what-
e?er copper waa coined since the said indem-
liily was the king'a conjiscationis jure^ without
may defalcations ; and ordainetl tlic oBicers of
the Mint to condescend on the auantity
prior to the act of indemnity 3 vhcreby they
designee) to chcit a confession that timy had
exceeded their allowance, which would Ijold
tbeiD in a probation ; as also to prove the va ^
lue of the iK»und or stouof copper ; and would
not allow ibem the current prices it was then
givin^t bnl only what it really stood them ;
and for the expences in coining, alloHetl them
to defalk whatever wagies they were yet resting
to the arlilieers and workmen, but refused to
allow them what they had ahready paid. To
the |vrejud»ce« arising from a supeilctation of
coplter coin marked by me alibi^ we mov add,
r That foreign commodities cannot be bought
with it ; for strangers will not take it. IL 6e^
ingama]) and caretetsKly kept, tlie half of it m
lew years comes to be tost, i,t> that the half of
the turners coined since the king come in, if
Ibey were called in now, are not extant. Ill*
ibe tmrhici or sixjiennj pieces force and tempt
Hite^uy more of fimall commodities than we
wed, anil they who formerly bought a turner's
ivortb of pins, spice, Jtc. are now in a manner
forced to buy a bawbie's worth, the turners
hifing ht com e t ery sea r ct» . A m ongst th c V e -
otliajif, 1 find it is <leaih to apply one penny
of public money to their own private stock or
Hie,
** Then the king'a adTocate inaistfid 00 the
•econd article of the libel anent hi^ refonnding
Uie proUt of the buihon ; and thous^h louder*
dale ajledged. tliat the master of the >jint, by
hum n^oe, gift and bond of catttiou, was liable
fbriltat ; yet i* ^ '^ found th* ' :'
llieMiott«aci of all the f
Hti negligpasce lum 4>[ui^;sion,eqaalU rmu nnu-
cipaUy to the king^ and not only iabsidmri(\
fe5Pr-'T"* *''tu bia rehef, as accoH- — .j-.t*
Ui' and for this there v
^j«Qt 1609« anaiit the l^
I, 9. § 8, D. * de admin, rer. ad civ. (»rrt.* T«thcre
*carator tenetur nomine collegas si prohibere
* eum poterat* Vet I Hnd, LI 11- 12,*ud 13.
D. ad municlpai, make him only liable * ortline
* discussionis prius ser*^ato ;' anil all tautiotiera
for administrators have the privilej^e not to be
couveened in prima instantia^ till the pmicipikl
be iirst discussed. This interioculi>r fiudmg
the general liable for all the malversation?* and
omissiuns of the inferior officers of the Mint,
was grumbled at, fur they had not their com-
missions from him, but from the king; and he
could lie in no worse cnse than a tutor or over*
seer, ^ qui teneriiur tanlum de do|r» laio et Uu
* culpa,* Yet I Hml mandatarii, amonp t%!i«mi
also are contained those who Imve coi
for offices and l rusts, are lialile in hu^^
kvttiima; but tliat must only be undttMooJ
of their own, but not of the culpa Uiwtma iti
these under him, though they be auswerobto
also, ci- i/ua&i delicto^ for iheir faults: And m
this rule, masters are made liable for tilde
teuiinlB and seifrants, and sberirta for their de*
pulies; see Statula Davidis 2. cap. 30. parents
and husbands for their children aud wives ia
some cases. The general is made llalde for
the inferior officers malvcrsatlous, not only be-
cause his knowledge, connivance and command
is presumed, hut Tie should have impe*icd and
discharued lb era to have coined more tljan wa*
in the kfiig*t^ warrants, and two copper jour-
BCySi nnd Bhouk! hare rcvenled and not con-
cealed it and divideil the spoil betwixt thero|
and * per tit, c. de Iklsa moneta, cliara cunstt^r
* puniuntur.' As to the point of rdief amon|^
themselves, if they be all pmven to l*e delitt'
oueuts and in dolo^ and to have malvcrpeil i
their tnist^ ; this ought to cut off all relief,
is elegantly decided in the case of tutors, I, i,
§ U. D. detut. et nit. distrah. and if one
ibem be dead, (as here in Mr. Jsmes P:il:
cooer*s casc, wht> is convccned for his fatki
the wardens malversations,) «ucb actions ' de'
* dolo qutp factum puninnt, non dantur cootra
* heeri^des,* where it was not established, «f^
litis cou tested aguii^st the defunct in his ow^H
lifetime. Vet 1 find capers, though decerne^H
to restore ships or goods unwarrantably sei»|^|
on and taken, have relief among tliemse!ff%^
though all tfccerned in $olidum,
*' Then the lords, after the debate, adrts
the seventh point or article of the libel, abou
thd profit they had uik)ii the exaltatioti
Crying up of the merks in 1680 ; and it
for aU bullion, silver coined or uncoitiedy ]
had lying beside them in the Mint-liouse {
time of that act, there was due to the kha{^
eight pennies they gained on each merk oT
and ordained litem to restore it ; and for wh
I 1 Tin they got in since the said act «
4 they gave the merchant fifty
\iw;;^s and ten pen ' ! '
they brought in
*' : eight |>tHJhrv-< :*in« r vu.n. »<tt,
' accomptiiblfi to the king for no mocn
•>am of ux\las ihe kinj^sl
• 'j«m jTOV«aaiUHiue i;^i.. ;., <^L .; , ^ut- ^am 01 y4utu(,>[t lue kuij^s^
^«si«ri)i M Will M Che toflitcr I snd 1 vocate can prote ihey compounded i^ittith
Bmdifthfrs.for €>fficial Mahtnaiian^
16BQ.
banU, for \cm thnu iIm* sM fi% tt^^lit
fwliinir* atifl rvjUt peinHCM^ anil whfUevef ihey
gol Jowii of it. tin»l it belonjjs to \Ue kinsr.
*' Then ilie kijijj *s advocntc ant] sir Pa! rick
Hmni* iiisiHti'il on ttie er^itih iiitk'te, ani'iit the
mal^i* iiuUiun of; Uip lottl?*, t»f*twiilistan«linp
ftet 519, [mrtMiikent 1507, (which they found
in clesutflinh^ na to the current coin, 'though
foreign «) found, rhai tliV inviting: Jowii nf <1<J-
• liirs, was unuaiTatitahtp u6 in//(<>; utid of du*
catnous, on) y »inre thev were <Tied un, as p&sa>
ing money* in 1080;" and timt the king- mnst
• hate the same jiwHt on them, as he vroiihl
IHto'e had of im parted hnllinn* tiz. the l!?lb
npN; though Luuderdftle nlleii|;j:od it wa& only
] the ;iOth iiofl: And found, that not only the
coin bearing the king*i» impress, hut that no
foreign coin that iiassei as current, ought to bo
melted down ut alL
•' Then al>er <lcbjite on the articles anent the
remedies of Hnes tind wei^lit, the lonk found a
^imin aboTe and hchiiv the Mandiird of weig-ht,
" and two |2^ruiii!>i above and btlow eleven penny
' fioe^ as tiie standard of the inlrin<!ic value and
fineness, were albmed only as a latitude "^to
' work on, where cAsually they fell ab'ivc or
under, because it would'lie «n'i(i>snjH'rahle la-
i>our to be precise ; hut found thtni culjwible,
the ktns;*« advocate provinw" they wroucht on
li»e remedies In^ncath standard^ as a coniitant
iidvanta|;e, so that wheti they came to trone,
or weti^i a mcrk piece, if ihcy found it exact
weight, they would part, raie, ur scrape a
^ratn off it, till it came to the remcad ; which
frandulent prachte Ix'ui^ known* the lords
found them liablu fur restitution of these g^-aios ;
and finding the article of John Fjilconer*^ Invnd
to Alexander .^laitkind, was made up of tlur
renieads, tii*?y re«oheil to cmdkcate the said
tnm to the king.
" 'llie krng*s advocate thcreattn' insisted
i AgniuHt Mi\ James Falconer* that he, ns suc-
' cesser * titulo lucrati^o ^MistconfrsKium dcbi.
* mm*' must be liahle for hi» father^ part;
irbich he did urge not only ibr nil deeds done
by his father bm warden, before he gave him a
^ disposition to bin estate, but even for all deeds
lifter, because he being introHtctl by th^i? king j
with his money, he became debtor from his I
firitt tiitry to hm office, and uny di^sposition he i
n^en^ardHtnirkeMorhi^ estate to his eldest son» i
repute ffauilnlfot, and otigbt not to
the kinjj's tacit hvpotherk,t!ll he be I
jNjKj r^i Ins own» which is ogrctuide to la^v, Hnil I
the Fi»ik*« privrlegw; ride Antoii. Peregrin, hh.
G, dejurc Fintn, c, fl. Yet this will exceedingly
decerned already, than all the genefnl atid the- 1
other officers of the Mint, thctr estates are Me \
to pay, if this rigor be not soniewhnt rcmittedf ^
by his mnjesly ; so that they need not insi-^t ]
for atinualrciits, unte!^!% it 1k' fi»r example, anti
to strike terror in other.^ j atui it is impossible i
that any can miinuge the I^Iint office, if they i
he 80 strictly searched. But it will be theeari
of Stafford V case, who wa« found guilty, yet
with one breatli it was declared it should not
be drawn into a preparative. However, Id j
this ca^^e of Halton's stand us a great instancf*
and beacon of the i^iix and inconstancy of all
sublunary greatness.
" The Lords, upon the Cnd of FebrnarVp
168:j, found my lord Muitland, then newly
come home fmra London, liable as ctmjnnct-
general with his father, J hough be tiever loed*
died ; because he ought to have supervised^
and his being adjoined when he was so young
OS not to be able to officiate, was allenarly hitf
fatluVi fiiult. In this case, Halion^s tni>
much debute and opposition, made tlie decreet
tiie stronger ; for, they thought to have hooked
htm in the debate, whether sir John Falconer ,
was Ixiund to relieve him, and to have freed sir
Jcdjn ; but Ifalton smelhngit, declared he hud no
process of relief against him as yet, and would
not insisit no;v. It may he doubtetl, if the chancel-
lor or other lords who were tm t he first com mn?-
sion, and had already given their opinion there
againiit iThn, tnight not in law, have been de-
clined as prejudicjite and pre-engaged, 8omG
of the votes aqiiiniit Halion, were carried only
by the exlniordmary l/jrds, Quiiritur^ ff
such inlerlocutors umy not he suspected as not
nitoginher consonant to Jaw, the extraordinary
Lurrls not hcing bred lawyers? Inthis process,
the Lrti'ds followed the ancient sutnmur way of
advising prrw^esses^ by debating and discuiwtng .
the rcleviuicv of one point, befon* they hcar<l
another, aufl removing the pnrtics (jrescntly,
wit bout wrrtten inf5jrmations, and giving theni
a distinct interlocutor on eac h of thettr.
*' 1 be Act of Lit iseon( est at ion jn this Mrnf-
cause being extracted, the I^ird^, on the yoth
of* February, I68^i, appointeil Cnstlcbill, Boyn
and Onimcairn, to receive the probalion, and
to nernsM» and to prepare it to the whole Lords,
anfl therein to t>ilce the lulp of heutenant*
genenil Drummoi d, tionbm of Gordon<«tt n^
atid rtadie Bnifd. This was thought oUd, to
adjoin asuscssurs to the Lord*;t but the matter
♦ Should Ik* Stratlonl. Slc vol. 3. p. 1519.
t Mr. Hume (Contmentaries on th<f De*
scription and Punishment of* Crimes, vol. 1, p.
man- the commiMce with mich puhli»* olTicers, | 4L) siiys: '^The JuNtice Court bi«run to iv
utid iH on the matter an interdicting of them
•* Then h« in»i*ted for the aimualrcnts of
^^tr sum* arising irinn their tlehnfjuency, utid
' El in not pavinjr what they wer»-' owing, and
efore uunuulrcnt was due here, nmnine
nni €i interrsyc^ tbougli there were ocUhcr
^jjH» nor paction i** infer annualreut ; and this
' K» anotbfvf pri% il(*ge of the tUk ; fide Pere*
, ibicL But there are more piuicipaJ stuns
roLu XI.
cover fffim that ntate of depn*Hsioii into which
it had ftdlcn, and to aspire to the like indepet!*
dence in its prot»er d£*partniei»t, %thicl! the
other stipremc jndjcttturcfi matntnined in theirs »
'['he rcgnhitions of lti72, without <xprts\Iy
furbi4hhng the np(>oiiitment oi a&sessurs, had
in their pi^amble uUudedtolhc inconveujencies
of that wrt of interfercncpr The eotntniKsion
too» of i071, tklWr iuvi'iltug the new cvatt
K
179J
34 CHARLES IL Proceedings agaiKst the Earl of Lauderdale [180
was sonicuhat out of the road. This tedious
f«ruces8 was at last advised by ihe Lords ; and
u}>uii March 20, 1(383, they found it |irovcu
by John Falconer, warden, bis deposition, that
tfifre was 17,000 stone weight of copper coin,
thoui^h there was only warrant for 10,000
stone, ()et it was objected, that John iinmeih-
atcly retracted and amended his deposition,
but they would not write it ; and that he was
only icalis sin^ularis, and that it was not taken
in judicio ordinario^ but in snmmario on the
kiu{4''s couimission ; but it was alled^e<l, that
he bein;^ a party « knew best wliatwas coined ;)
and found, that llaltcui had UiUen (300/. ster-
lingf, from sir Ji»lin FaJconer, to ^et sir Johii^s
accompt of bullion past and cleared ; which
tliey decerned him to pay back to the king* as
caductun^ being' a bribe, unless he condescend
upon another ca«ise of bis ^ivin|^ him it : And
Ibuud the sum they were all liable in to the
kiuj^ conjunctly, was 72,000/. sterHug, for
which they decerned them all in solidum.**
Ma^ 10, 1C83.
" This day there is a letter from his majesty
read at privy council and excheouer, bearing'
the Bnul sentence and determination he &^ve
forth against the oiiicers of the mint, viz. That
whereas his advocate having obtained a decreet
against them before the lords of session for
72,000/. sterling, and he mindintr the eminent
services he hath rccei\ed from his late general
of the mint, now earl of Lauderdale, theraforc
he miti^^ates the sentence against him, and
iinds him only liable in 20,000/. sterling for his
part of it; whereof 16,000/. sterling the king
gifts to his chuncellor, and ^,000/. i»terling to
Graham of Claverliouse ; with this declaration,
that if Lamkrdale and his 8(»n the loni justice-
clerk shall dispone the lands and lordship of
wit'j all iho powir;; and privileges which had
Uloii<;i.d to the jusiic-c-gotKial, justice cleik,
*ihI jubilee- deputes of r!ii, liiiu proi'^eded to
declare, * qiiud anted seta curia jubticrlariu',
* proul per prti'sentes t-st stubiiita, est el erit
• nostra siipren:a curia jiisticii:riu', et ordina-
* rimiM liuiinalc jtidiratorium :* aiidcs;i<.ci:illy
it had pro; Idinl, ^ (|uod nulla causa ad illud
• sptctiii.s ahstralKtur ali eodom. nei: adduca-
' tiiiod ctiodvjs a!iud ordirs.rium jiidicaturium
Miit :>.<!\i.culiunis prcco^niiionis, scu super'
Mpuivis alio prtetexta <jm:cu:j(]ue.' On the
pait (»f tl.u privy council, tiicrefoic, sume of
ll.r abovf-niciitioiiui irn'gului- iiiK /jn -.ition. ,
■ct-lt.-iN tiic naminc of ass;':>'«i'r:u, and il.e re\i-
■a! < 1 ;ii(; procceilings of c«..iirt, wtTf imuK^di-
atilv »ii»-c()!!liiiu(.il ; ui.d iiio>.t oi" the other
hbw:.t. „■' I 'i III." p'ivy co;:(:cil, boucvcr, named
o.-,.'.i.S;«iis ■^» 'it viiili till' ju«!g'v' ;i<ii:iiral, in the
i!(*tr..l tr; .1 '..t (Jnen and olhri*, for piracy and
inunlti, in 17l)oj *Mhon;rh not at onue laid
asiilo, \unv [.ratii.scd howi'ver, afii r this tiine,
villi r.iore k-i i vo, and in a ma.nncr k-ss olfcn-
■ivc to th<' foiirt at least, than IcrmtTly ; and
af\er the UwvokiUou they vamc to b« eotircly
dMUbVd."
Dundee and Dudhope (of which the king had
gifted him the ultimus hitrety ward, marriaffi
and recognition 11 years ago) in ftivoan of tha
chancellor, then he shall be free of the foresaid
sum of 20,000/. sterling, providing he give real
warrandice out of other lands, and ogaiost all
the late earl of Dundee's creditors, or their
consents ; and that it contain all w ithin two
miles of Dundee ; so that Glastory and Inner-
kiething iall not under it ; and that Claverhouse
shall have power to redeem the bouse, yards
and parks uf Dudhope with the constabulai^ of
Dundee and all its emoluments from the chan-
cellor at 20 years purchase; (which somt
valued woith 30 years, because of the g^reat d^
pendance and superiority.) A!i to sir John
Falconer late master, the king fined him in 4
years antl a half's full rent of his whole estate
iiolh personal and i*eal, besides the bullion in his
hand. — He was made so easy, because they
had privately forced him to give his brother
David Falconer a l)ond of 9,000 merks. — ^And
decerneil James Falconer, the late warden's
squy and Alexander Alaitland the late coonter-
warden, in 6 years rents of their whole iiir-
tunes; tliough there was no passive titles
proven against the iirst, and not so much as a
decreet against the second. This way was
taken with thir two, because Mr. James's father
having hangeii hiinself, as was ro|K>rted. his
son refused to pay any composition for his
eschcat,shewinga right* he had long prior te
life rent and all, df-nudiug his father, and much
debt Qnon it : and it was to furce the second te
demit his place of macery. It was said, the
fines of thir threb la^it were given to the two
Scots secretaries. — t)n roadirg of this letter, I
found it likewise connnanded the earl of Lan-
der4lalc to discharge any relief he clainieil or
had against sir John Falconer as master, or the
And in another place (1 Comment, cap. 1,
pp. ^$, 4.) after noticing tliat in Scotland, it was
part of the king's prerogative formerly to
judge in person if lie pleased, he nunitioDS,
"That by statute 1(381, cap. ia,the 3rd parlia-
ment of Charles 2nd, it was attempted tu re-
vive this principle, and carry it into practice.''
The statute was as tbllows, * Act asserting his
majesty's pivrogative ia i»oint of jurisdiction.
Spptend)cr loth, IGJjI. The estaies of parlia-
mciit (onsiduring that all govtruiTient and ju-
risdiition v^itliin this his niijesnes ancient
kiii!;(li)ui ofS^'otland, dovs originally reside iu
Ills sacri-d mHii.'Liy, his Lawful hei.s and snc*
Cc-bsors: And although liis majesty, and bis
rryal pndeccssors, have bestowed offices and
jurisdictions, upon sevemi of his well desert-
ing snl>iv.cLs, ytt tliese are not privative of hia
jurisdiotiun, t.'icy dotherribrc, in a dutiful,»DMl
humble recogni/ance of his majesty's royal
right and prerotrntive as to this p<)int, declare.
that notwithstanding of these jurisdictions and
oiiiccs, his sacred majesty may by himsell^
or any commissionated by him, take cogni*
sance anddecisioD, of aoj^ cases or cauaetlM
pie -
181]
m^i oikeripfor Ofieial Mtdwersationi.
A.D. 168?.
[182
other iDierior ofBcera of the mint. This was
a miserable reverse of fbrtyne upon my lord
Lauderdale, ibr all his services, and a flpreat do-
cument to all statesmen of the lubncity and
instability of their offices: and it was no won-
der to see the lords unwarrantable and illegal
decreet restricted, they having decided supra
ftome very odd and irregular points in it In
August 1683, the cl^incellor and Lauderdale
agree J and he accepts of the half, viz. 8,000/.
sterling; or 10,000/. Scots, and '20,000/. Scots
farther when they shall be able, and whereon
they gave him sir William Sharp, Cockbum,
9c6, cautioners ; and having gotten an assigna-
tion to the chancellor's right, they offered to
Claverhouse (who resented the chancellor's
transactini^ for himself, and deserting him, and
•ntering mto friendship with Halton,) the
house, yards and old park of Dudhope, with
the constabulary of Dundee for 90 years pur-
chase, as he was to have paid to the chancellor,
in whose place they were come. And they
being debtors alternative in 4,00Q/. sterling, or
that offer, they elected this last ; which he de-
clined to accept."
July 4, 1683.
<* An act is made anent the mint, closing it
up, till the parliament sit to give it new regula-
tions ; and ordaitiing the Spanish Ryals of 14
drop weight to pass at 66 pence. Some mer-
chants think this way of crying up and serving
ourselves with foreig^i coin, is an easier way of
furnishing the country ; which custom Poland
and some other places use ; but it is not so
creditable."
November 7, 1603.
** The earl of Lauderdale upon a bill to the
lords gets a stop to the charge of horning given
him by Claverhouse, the high-treasurer, and
Hew Wallace cash-keeper on the decreet aucnt
the mint, in regard he offered obedience to the
king's tinal determination in May last, and so
ought not to be charged for the whole 72,000/.
sterling contained in the lords of s^sions
decreet.
December 13, 1683.
«< There is a letter from the king to the chan-
cellor, stopping the procedure against the earl
of Lauderdale on the decreet anent the mint till
the 15th of January next; and recommending
to Claverhouse and him to agree about Dudhop
and Dundee, and each of them to nominate two
privy counsellors to endeavour an accommo-
dation between them.
January 1, 1684.
** The juncto of the council met on Argyle's
letters, and have got Gray of Critic, and Mr.
Geoiige Campbell to decypher them. , They
first touched the earl of BaWarhoute, as he
who was touched with the hieroglyphic of D.
and «s above the head of the D. and of H. i^
— When the lady Argyle found her own son
tbas touched, she then said, that she now re-
membered that D. ^ was only a relative par-
ticle in the key betw^n her husband and her,
and so roeaned the L. M. [Lord Maitland] im-
mediately mentioned before; which inferred
against him that he was corresponding with
and receiving lettoi-s^ from Argyle, a traitor.
The juncto upon this sent fur the earl of Lau-
derdale, and sent with him captain Graham,
and sir William Paterson their clerk, to seal up
all my lord Maitland, his soii, (ihen at London)
his papers, trunks and cabinets, till they should
sight them.
January 24, 1634.
*< Colonel Graham of Claverhouf^e insisting
against the carl of Ijauderdale, upon the king's
letter, to dispone to him the house yards and
parks of Dudhope, with the constabulary t>f
Dundee, he paying 20 years purchase for it to
the chancellor, to which 20 years purchase
I^auderdale on his transaction with tne chan-
cellor was assigned. It was alledged, Esto this
were the king's 'cause, yet not being called
within 48 hours after the returning of the pro-
cess, he behoved to have 15 davs advertise-
ment, conform to the 16th act or par. 1679,
ratifyinfif the regulations; which he had not
got. The lords repelled this, in regard the
kingf's letter mentioned supra 13th December
1683, recommending to them to agree' was a
medium impedimentum ; and there %vas but 48
hours between the up-giving of the tryst and
the calling, which satisfies the act of parlia-
ment. Then alledged, the sum of 4,000/.
sterling of the Mint decreet being gifted to
Claverhouse, the king was denuded, and it
came to be in the case of a common donator,
who had not the priirilege of a sumraar railings
but behoved to abide the course of the roll.
The lords find the letter made it still as if it
were in the case of one of the king's own
causes. AAer repelling thir dilators, then
Claverhouse insisted that lord Lauderdale
might either purge all the incumbrances that
aftected the house and yards, or else give him
real warrandice out of' his other estate • the
lords delayed to answer to this; seeing the
offer of absolute warrandice may satisfy ; for
by an inhibition served upon it, it may be made
more effectual than real warrandice, which is
restricted to a particular subject out of which it
is given ; whereas an inhibition stops the dis-
posing upon any lands within these shiree
where it is served and execute.
February 28,
" Claverhouse's cause ajjrainst the earl of
Lauderdale, was called ; nnd th(» I^rds found
they might advise it summarily without inrol-
ling, it being a part of the king's cause ; and
that tHey cannot obhge sir John Maitland to
consent to his father's disposition to Claver-
house; but ordain the clerk to mark on the
process that he was cited ; and find by tbe
probation that the twenty years purcha-e of
Dudhope, «Scc. comes to 6,000/. Scots-; and on
his paying thereof, ordain the dispoiitioo to ll»
183J
34 CH ARLE8 II. Procuiingn agaimt the Earl of Lauderdale [ 184
delivered up to bim before tlie SOlb of March ;
betwixt and which time Lauderdale may obtaia
uiv loixl Maitland and bis lady's consent;
otlierwi!>e ordain the decreet to be extracted.
March 29.
*' Tlic king's remission to the earl of Lauder-
dale and his son came down ; but a letter
clogged it with two qualities ; Imo, That he
should perfect his disposition to Claverhouse,
2do, That he should discbary^e his 'recourse of
relief afpiinst sir John Talconer, and the other
officers of the Mint ; and bore |>ercniptonly that
thir should be performed within ei^it days af\er
Bi\g\it ; and if they were delayed, (which his
majesty -would riot believe,) then the remission
not to be past the seals.*'
Much collateral liti^^^tioii issued from this
prosecution, as appears from passages iu 1
rountainbull, p. 337.353. 3(30. 394. 409.
With respect to the sealing up of (he papers
on January 1st 1684, it may from lord Foun-
tainhnlPs roprcsentation seem that Wodrow has
not expressLd himself with his ordinary exact-
ness. His words are *• 1 find an orJcr Irom
the Secret Committee to captain Patrick Gra-
ham and sir AVillinin Patcrson to go and seal
all the lord Maitlaud's papers in the late Lau-
derdale's lodgings. It seems a little before
this that once great man the duke of Lauder-
dale died ; and notwithstanding his bright
parts and long favour with his master at length
lie fell into the utmost neglect and contempt :
and now it seems the present manaeers resolve
to canvass his papers." History of the Suffer-
ings of the Church of Scotland, vol. 2, p. 451.
DECREIT His MRJestics Advocat against E.
Lauderdale and officers of the IMint. D. D.
Att Edinburgh the 20th day of March Im.
6 c. and eightie thrie vi'ires anent the sumonds
and ac'tiono raised ancf perse wed liefor the lonls
of counsf>ll and sessione at tht^ instance of sir
George M*Kenzie of Hosihau«:h his nia*ties
advocat for his highnes interest iu the maitter
hundr written ngiiinst (.'haries earle of Lau-
derdaile and Richard lord Maitland his son
laite gencrall of hus nm'tios Mint sir John
Falconer laite master thereof AltxanUer Mail-
land one of the \\aiidens thereof Mr John Fal-
coner sou and aire to the dccii^t John Fal-
coner the other wairden his fiUt'ier at the least
behaveincT himself as aire to hiui he intromis-
sione with his airship goods at least ex'er to
him at least successor to him in his lands and
hen t idges *■ titulo lucrativopost contractum de-
that his tna'tie since his happy rraturatioiie
was pleased to allow six thousand stone- of
copper to be coynied at two several! limited
tymes Yet notwithstanding the said Chariet
earle of Laudenlale and Richard lortl Maitland
laite generall of the Mint sir John Falconer
laite master John Falconer and Alexander
Maitland lait wairdens and Archbald Falconer
laite counter wanlen di(( most wnjustly and
wuwarrantably under the pretence and sbaddow
of the said six thousand ston alloived to b6
coyned at two several I tymes did coyne above
foiittie thousand ston of copper which wasther-
tie four ston more then was allowed wfaerciif
twentie thousand stone dureing the first copper
iumay and fourtie tliousand stone dnreingf the
last copper jurnay to the great losse and prgn-
dice of this ancient kingdome And they bar-
ing uswally coynietl threttie six shillintfs oat
of every pound of (K)pper of tlie said thretlie
four thousand stain that was coynied more nor
was allowed by his ma'ties warrands which did
amount to the soume of nvn hundreth aiventy
nyn thousand and two fmndred pounds ftr
which the said Charles earle of Lauderdale and
Richard lord xMaitland as cheiff officers of the
Mint who hade power to supervise and oontroll
tlie other officers and punish them if tbey
coniitted any fault who hade special trust from*
his ma'tie and als the oy' officers of the Mint
' singuli in solidum' ought to be lyable to his
maHie with the a'rent of the severall soumes
coyened at the severall juruayes more then was
allowed by Uic warrands from the tyme of the
expyring of the rex've jurneyes.
And alse all)eit his ma'tie and ro^all pre-
decessors have alwayes hade a speciall caird
to provyd buliyone for the incressine and
roantinance <»f the stock of coynadge of
this kingdome and that it is expresly pro-
vydit by the act of parliament that the goods
and marchadise imported by the marcbands
should pay soe many unce of bullione or
oy*wayes pay twelve shilling Scots for ertrj
unce therof the generall and masters of the
Mint by the inarchants the soume of threlia
thousand siven hundreth and twentie poumb'
yearly as the twelve shilling for every ounce
of bullion with which they should havebou^
two hundred stons of bullione yearly which
from Caudlsinis Im. vi c. and siveutie which
is the daite of the act of parliament by wbidi .
marchants ware allowed to pay in to the Mint
twelve shillings iu place of every ounce to
Lambas lin. 6 c. eightie two being iwelva
yeares and aiie halfe ainounfs to the soume of
three hundreth and eightie four tliousud
pounds And yet notwithstanding the laile ge-
neral's and masters have rcceaved the soume
of three hundreth eightie four thousand pouadi
dureing the forsM tueUe yeares and ane balfil
* bitum' at the least unv^rsall intromitter with > from the marchants as the twelve shilling
his go<Mls and gear And .Aindilmld Falconer laite place of every ounce of bullion and sboaU
counter wainien Uiakaud mentione that wher
albeit by tie lawes of all nationes and acts of
Eu-liamcnt of this kiugdonie the cuneying of
ar> »>'*»v without wairand is discharged and
have imployed the samin for buying of
y't they might have coynied the
they have inverted the said twelve sliillingmm^
the use ffor which it was destiuat and Sd aol
and others, fcr Official Maha'mihm,
A. D. 16S2.
[186
imploy it for buying of buUione but apply etl it
to ihcr own |mvat use Ami thedbrtliey ougbt
to be lyahlc lo his uiaUie for the smf twelve
stulling' payed in liy the mareUants in place of
biillione extending to tbe saiii s«unne *if iliree
likindrellk ti;;li»ic four thousand pikundslhe yeirs
above mentkiuBl ivitli tlic a'n ni iif tht) said
threrie thousand si feu hiindrcth and tweniie
|K>un4 they received yearly from the first
tertiie the sumcn l»€4 ame due to hit* out mn^tie.
As also bis nia'iie of his prinely care tor \he
j^oo*l uf liiei ^kithjeois increbiiiag of luouey wilhiii
this kin^rdom and for advaneeiuif his rev en e wen
arrysiug by the Mint <lid allow the generalls
anil master and officers of Mint ihe yearly |
a*rent of the son me of three ihonsiuiil three '
buodrcth thretie three peund six shdling- eight ^
pennies yearly as a stoek tor hnyioj^ in of
huJlione tnMiie tynie to tynie which mtj^lil have
bought tweutie sigas of Uullione at every tyme
which mig:ht have been coynmJ and exct»ao»je<t
ia ifuUl and tnony twenlie tymes in a yejire tlie
jirofeit therof arrysintr tn his ina'tie beinsf i*iy:ht
tliousaud anil six liutidrL'th pounds in the year
which for twentie ane y^ars by |»ast since his
tna'ties happy rt^uratiotie woiild haveumouot-
ed to the simrae of ane hundreth and eijjbtie
thousand aud six hiUMlred puunds notwith-
standing: the i^eueralls uvaster and oy* otHcers
of the 31int hes not im ployed the'^stoek of
tnooey soe that the runtrey hes been exiremly
|»rejiidged and bis ma* lie ilefrauded of the be-
ue^te that would have arisen iherby if the slock
of ftiony hade bein im ployed and the bulyone
imported coynied anil exehani^ed so many
lymes m tlje year as it 004* hi to tiave Ixren ac-
cording to his mantles appointment and y^r for
the geneiMb ra aster and (nher officers of the
JViint ought lo be lyable to bis nm'tie for the
*»amc wilb the a'rent of the said yearly profeite
from the lir«t terme that the same becam due
%%.* hin majestie.
As al:io albeit by severall lawes and acts of
parhameot the mony of this kinjjdome k an-
|»ointed to beof equall weiifhtand fmnes with the
lotniy of England And y*t bits ma^tie baveinpf
litter the example of his ruyall preilecessors tor
Uie advancenifcnt of the mony tred aud com-
merce between the tw» kinjfdomes* that the mo-
tley eoymed in iMJih shfiuld he i4* a like weij^ht
ami tinnesand tor ihateffect in iheyear Im. wlc.
Btxtie two havein^j^ cause*! frame" ane indented
silver Htandert plate of sterlinjBf liniies and ue*
eiired bv hin ma 'lies seal Is a part wberof was
pent hither to 8eotIand as the rule wberby to
make cssyses of the fineness of silver in all
tyme hereafter yet noiwiibstanding' the mony
of this Linifdome since that tyme bes l>cen minted
farr below the fmnes ot ihe standart plat and al-
lieit the ofhcers of the mint ware only allow-
eil to work upon the remedies in caice ca-
fiualttie that the sime all over wndei and noe
oy'wayes yii notw ithstandioLC they did not
work upon but even below the remedies soe
that ihe Scots c^yne bein|j two grains less then
• ^^ iQ the Original.
the indented staudart pbte they wswaUIe work*
ing upon the remeches of fitines and ther Mng
two bundretl «tons of bulbone y^t was eoyniea
yearly the profeit arry&ixij^ to the otiicers of
ilie Slidt by the diflTerance of the coyn from
ihe tiitnes ot the indetiled sstimdart plate with
the benetita vjf the remedicti being twelve sbtl^J
ling upon t lie pound ol' sdver wilt extend to
the sotiriie id ane tbonsnnd nyn hnndreth and
twenUe pound.>4 yearly wliieh from Caudtgmis
Im, vi e. sivcoty yeai-s to Lanibai» im. vi c.
ei^htie iwa year fong twelve years and ane
lialfe W'ilJ extend lo the fH>tmie of twentie four
tliousaod pound for which ihe generalls master
Hinl other otHcers of the Mint ought to Ix
I y able to hi'^ ma 'tie sin<^uti in ioiidum with tlu
aVent yearlj after the first termes thai the soma
became due.
As also albeit it be contrary to the
tnre of all mints thai any silver thats coyne
should pass tbe kings yrons without ane esse}
therefd iirsi taken yU it may be found of iinnei
deliu^nible yet noiwitbstaniling the half of tha
coyn or this kiugdome wilder the pretence of
silver called elush heads sucips and scropes hetf
beiii melted aud printed without any essey
thej'oi taken soe that ther being two hundred
sttms of hullione coyned yearly aud ane half
y'rof coynied wiihoui aneeasey will extend to
the wiume of sivenlie six thouj^aiid and eight
hundreth pounds yearly wlitch from Caiidlsmis
lin. vi c. sivenlie to l^tnUas Im. vi c. eij^btie
two years being twelve years and ane halfe
extends to tbesoume of ane hundred and sixtie
thousand pi>und» which beitig coynied without
ane essey as said m eontiscat to his tna'ties use
and the ofKcers cd the Mint are lyable to his
Tiia*tie lor the sanune sin^w/i ia niUdum with
th« u^renl thei of yearly after the same becam
due to hisma'tie.
And in lyke nianer albeit by the eomou law
and laws and acts of parliament of this king*
doui It is expresly prnvydit that noe man
should have ditferent weights and that the
wsers of false weights should he severly pu-
nished and for the security of tliii m eight of
mony coynied in this kingdom his niaUie havo
ing al waves a pyil of weights in Ihe cunzic
bouse with which the olhcei*s of the Mini
ought to have receaved in the bullion with tlie
dean of Guilds weights of Edm burgh which m
lour of th« bundreth heavier then the kings
weightis ROC that (her being ane tbouiiiund and
(i\e hundred stun of bullione receaved by the
general! and master of the ftlintfrom the mar-
chands to be coynied for his luaHieii wse these
twentie ane yeara by past since bis maHies
happy resturatione will extend to the aoume of
fourlie thousanil pounds for which thtv are
lyable to Ins ma'ttc &inguU in ioHdum with the
a 'rent yearly frae the tyme the sameu becam
due.
And sickly ke the coyne of this kingdoms
being cryed iip the probi of the exaltatione be-
ing three sbimng two pennies upon the unce
wbicb is fourtie pound ti^n sbilbng upon the
stone will be upon four buudretb stoos which is
I
I
187]
94 CHARLES IL Proceedingi Mgaimithe E&rl of Ltuierdale
eoynied for a year and ane half since the mony
was cired up will amount to the soume of six-
teen thousand and two hundred pounds and
the profit of two huudreth stons lyin^ in the
Mint the tyme of the exaltatione by the same
rule will amount to the soume of eight thousand
pounds for which they are lyable to his ma'tie
with the a'rent yearly after the first terme the
camin bpcam due As also the yearly interest
and profeit any sing by the bullione payed in
to the general Is and Mint by the marchanu and
not eoynied within due tyme seeiig it appears
by the books that ther was a'wayes three huu-
dreth stone of bullion in ther bands yearly
and not eoynied for the space of sixteen years
ever since the year Im. vie. sixtie six that
they began to coyne being twentie thousand
marks yearly will amount to the soume of two
hundred and therteen thousand three hundrcth
thertie three pound six shilling eight pennies
lor which they are Ivablc ' singiili in solidum '
to his ma'tie with the a'rcnt yearly at\er the
first terme the saroen becum due.
As also albeit by many laws and acts of parlia-
ment of this kingdonie It is declaired that in re-
spect the silver and gold put in a fire to be made
bullione to other new mony is diminished
wested and distroyed in the translationc by the
fire and procures great skeaih and hurt of the
king and his leidges Therfor it is statued that
nethfr silver nor gold that bears forme and
print of coynie be any waves meltetl or put in
the fire by the kings *coyniers without speciall
licence of the king but all gold and silver that
is coynietl and lies print to be (»bserved and
bolden huill amongst the kings leidges As he
ordained it to have course and the contraveeners
of the law to be severly punished yet notwith-
standing the genenitl master und uiher officers
of the Mint hath melted doun the number of
ane hundred and iiitie thousand leg and rex
dollers twentie thousand ducatdouns and other
moni-'y by which a great part of the current
mony ui the kiug<loine hes been wested and
distroycd to the great ruiue of tred and impo-
▼erishiiig of the kingdome which ane hundred
and fiftie thousand leg and rex dollars and
twentie thoiu«and dovcatdouns and other mony
that lies hein meUed douu these sixteen years
bypiuit will amount to the soume of fyve hun-
dred and i'y\c thousand pound for which the
ofiieers of the mint ought to be lyable to his
ma^ie ' singuli in solidum' As also the said
Charles carle of Lauderdale did receave twise
payment of three years sallarie as generall of
the Mint being four thousand and nyn hun-
drcth pounds viz. one out of the excyse of Edin-
burgh by a precept from his m*atie and ther-
efter did most wnjustly take payment from sir
John Falconer laite master upon his maHies ac-
compt of the lykc soume for the said three
years sallarie and therfor aught to make pay-
ment to his ma'tie of the forsaid soume of four
thousand and nvn hundreth pounds with the
%*rent from the first terme after the said double
piymeDt.
As also albeit Um common law and acts
[ISS
of parliament of this ancient kingdom It is
statute tiiat if any iudge or minister of the
law take buds or bry bs they shall lose ther ho-
nour fame and dig^itie and be oy'wayes pu-
nished in ther persones fame and goods yet
notwithstanding the said earle of LAodercfale
ane of his ma'ties laite generails of the Mint or
thesaurer deput apd ane of the com miss' rs of
the thesanrie and exchequer who by his offices
is obleidged to comptroll the master of the
Mint his accompts hehaveing a speciall trust
and sallarie from his ma'tie for that effect yet
did take from the master the soume of six hun-
dreth pound sterling as a wnder brybe to
procure allowance and payment from the ex-
chequer of his most wnjust and exorbitant ac-
compts relaiting to the Mint and coyne pfre-
ceeding the year Im. vi c. siventiefour staiting
his ma'tic debitor to him in fonrtie tbousana
pound Scots albeit his ma'tie was not due to
iiim a sixpence but one the contrar the roaster
and other officers ware debitors to his ma'tis
preceeding that tyme in great soumes of mony
upon the grounds above mentiond As also bj
the common law and laws of all nationea tns
illicitintrnnd extorting of lands and soumes of
mony especially by a superior officer from
these in office wnder him is manifest and gross
oppresione and severly punishable Yet not-
withstanding the generall of the Mint did rex
and trulde John Falconer the laite wairden to
call him befor the privy counsill wnles he
would grant u band to Alexander Maitland
counter uairden for the soume of twelve thoo-
sand marks upon the accompt of third of the
reme<lies that ware allcadged to be due to him
since his entrie to his office which remedies
did truly belong to his ma'tie Yet notwith-*
standing the uairdin was necessitat to grant
band for eliven thousand marks and grant ane
dischar&re of a thousand marks which was dus
to him for his iies And albeit the band was
taken in Alexander Mait lands nameyetitappeirs
to have bcin to the generails behott they h«iire-
ing cau(«c<l wse dilligence upon the )>and and
put the wairden in prysone whill he was neoes-
sitat to compone and transact the same with
the generails for the soume of siven thousand
marks which was imployed and payed for ther
wse and behoove And therfor the said Charles
earle of Lauderdale Uicbard lord Maitland sir
John Falconer Archbald Falconer Alexander
Maitland and Mr. James Falconer as air to the
sM deeesst John Falconer his father laite wair-
den at least liehaveing himselte as aire to him
by intromission M'ith his airship gpoils at least
ex*er to him at least sueces^or to him in bis
lands and hcritadges ' titulo lucrative post COD-
* tractum debit um' at the least wniversall in-
ti-omitter with his goods and geir aught and
should not only be decerned be decreit of tli«
saids lords of counsel I and sessione * sinffoli in
< solidum' to make payment to the high the-
saurer thesaurer deput and Hugh Wallace his
ma'ties cash keepere in his ma'ties name and
for his wse of the rex'ive soumes of monw
rex'ivie above written due by them to lui
189]
htrt^fw Offieial MahtnaHcni,
A.D, l68t.
lor
i
Hi»'ti(^ lur tlie caiutGS rex^irie aboTe in«Btionecl
mill of ihe a*reul9 therof of all byj^ines since
tiic rex^ive tcrnics fthnve h%*\X duua tb&t the
taitic bectmie flue to Ins ma' tie as afors'd and
ynirly and temily in lyme romeing dureiriff
xiw not payment tlu'rol' Hut also they haveing
cuifiittiHl siu»ti itiai)iiV'!>t j»TiJHs ucts !i«vl uial^r-r*
^ ' " to the Mint and iher
J Mj^lit to be remitleNl to the
iiti,,, .,, ^., ,. j^ »...Mn>^il or lonJ?« of iusticiarie to
be punished' aocordiiij,' to law in Ther pernones
nnil *:oods to the terror of otbei-8 to cotnitt and
i\iHf the lyLe In tymecomringf As is alleadped
aud aiirnt ihc chnL'^f ^/wrn to tiie said Charlts
earleof Lau(lei> «| lord I^Iaitland hts
•on gruemH oi i «if John Falconer
Alexander Maitbnd 9k\u\ 3Ir. James Falconer
eon h\\\ iiirt' to the toiid wnqMI John Falconer
hi^ Ifatbcr at least bcbai^ein^liimselle ai aire to
liirii or oySvayea reprcieuting him upon aneor
oy' of too nas*ive titles above sett down and
Archbatd Falconer defenders to have eoropeired
befor the $aids IoiyIb at ane ceiiain day now
bygnine to have heard and seen dccreit and
sentence given and pronunced a^t them
in mainer wnder written and tberin mentioned
AS in the priutt sunionds raised in the «aid
majtler at more Icnth ts contained The s'd sir
George Mckenzie \\i^ ma'tiej^ advocat compeir-
and pt^rsoually with sir Patrick Home ndvocut
lor his nineties interetft and the miid Charlef*
rle of Lauderdale and the bM Richard lord
aitland gcnevulls of the mint X\wo of the s'ds
fenders abf»>4-nanied compeirand be sir
eorge l*f>ckhart sir John Dairy niple sir John
IjHuder Mr. Walter Prinsjie and Mr. Thomas
Skeen ufhocat^i ther proVs who produced in
presence of the saids lord«i ane g-il^ and cnmis-
sione g^ranteil by hisi ma^ie wnder hts httrhnes
freal Heah to and in Havuurs of the sM Charles
iaitland of Hatton (now en rle of Lauderdale)
daitit the li>i.Hi. a^x iS ^^^'^^mYyet \m, \lc.
•ixtie year - and ordaJniug-
the Maid Ch ' :>!f thedayea
•f hi«i [ift>^Tue ^enerijll or Mint and
kffice of c<vvnii)L' \s\\\\ all ii ^ dijrneties
privilcd|;i* nod casfialeties iJierto be-
«m^in«^ an iini^^ione rrmrr fii*h" liearit
witli ane other j^ifi uiid corni^-
bis mn^tie wnder his hitfliofs «'
the twentie third day ot
9ixtte eitthl yrurs raliticiii
. couiih^ioue ktid of ni'W m,
latid ordaining: the sM \
ialtoti nty\ -•■ 'T Lnutl* » u.^n i
Iklaitlund li Wfull son non
Ifcnd and L>..., . *.,( "♦ -i -. .i...:^,.. ..ti
ti»e dayes of ther 1
nu^lii-H y\\u\ :i(id (M
Itbch
ndc;. , : . • ^ ^ ,^, .
} extract forth of the books of privy a»un-
of anc htjnd p*rantcd bp Ilavid e*rle of
Kilii«lib ^ ' M GeAi*|;e lord
•r K <;of BaJnunooit
itr Ah'xiiodci . if flmikertouu
iidiir^ilutgiiU- - :r Ibtfwf daitii
dbe
l^ted
lui. vie.
r rrift and
m Uiriiiird
lord Mait-
titie sixt day ■
the fourth day of Augttst and twentie sixt day
ol tlctoWr Im ri c. ihrelie siven years Wherby
they are bound as cautioners and sorertie for
Nicolas lir^at and John Falconer that the s'd
Nicolas liryat and John Falconer shall fTaith-
fnllie and trewly ererce the office of niastere
ofhisma^ties conzic bonstc and shall loyallia
ptrforme the duety incnmhcnl to ther ciiar^
ake will in what may concern c his tna'ties
interest at the good "of (be leid^es And ia
special 1 1 1 tat they i« hall make faith lull payment
and delivciauce to the nmrclionts inhringers
of the bnllione and forraigne coyne be ex-
ch-iiH^L' i\i I tie stocks p¥en into thera by tho
siM win his ma' ties coy ne in manec
and . '.■ 10 the t>'me accustomed and setl
donn by the orders of the cunzie house as th#
s'd eictract wnder the hand and subscriptione of
sir Peter Waderbunie ilsirke of the sM privy
counsell bearing' the samcn to be reg'rat in
the books of privie counfiiU u|ion the tenth day
of J ally Im. vi c. siltly two years more full J
bears Toj^ther with ane'act of parlian>ent daited
tbetwelvth day of June Ira. vi c. lixtie ane
years order! njr and ^ommaadins^ Charles Mait*
land of Hattoa general I of his majesties l^lint
in Scotland and sir John Falconer maister of
the cunzte house joyntly and equally to coyne
or cause be conzied in turners three thousand
stun weij^fht of good peuther coj^per whicli waa
to be provyded and iurnisht by the saids offi-
cers equally betwixt them without any mixtur
of brass and the samen turners to be of the
same eictrinsick value the lastjurney of turner*
was viz. ane turner weighting fine drop ano
halfe (four grains less) of troyes wein^ht as
the said act of parliament wnder the hand of air
Archibald Primrose clerk re|reater Ivtars togi-
theralso with anc act of hit*.toa*ties priry
<!oiinsill daitted the twentie day of CIctobcr
Ira. fie, sixtie three years ordaining the tw<>
mark peices the one mark pcices and the balfe
raark peices to be coynedin roaner therm spe-
cified viz. to pass iii'li^^l.tncK-* through a mrlne
to be ciitted by cutters to be troned weighted
and justed pevce by pfi^-e and to be nrmted by
peices that goes by swey and scrned and that
the irapr^inone of the «iid two mark peices one
itiark aad Halfe roarit peices bearc on the one
syde luH maHie« fece and etB-^s cxprosi m the
povnj«ihes thwn ment' And the superscrm-
tione thenn exprest and one Oh^ other ^y^^ the
coat of armes of Scotland witli ane eftcutchjon
byitselfe in maner v'in specified «nd ordam-
iiV the two nmrk peices to be ten deueirs thcrr
teen jrrautis nvnteen proim^ and the woirht of
H- . .. nrk peice of fyve denires mx ifittineK
ant^ prouns twelve »cco!>d« atid \\m^
i^f thp half markepeice to be twodcntrrt
crraios ten protmes eiq:htccn secoudt
1 rvvitii three graines uf remedie iipof^
each t%vQ mftlk peice aise weillliKht a^ li^^f
with two jjruifies of remedic ujwi eacli c
mark poioe and half JJ^^ *W***
heavietJie saidjsspeci UiiMrttlwsyi
troned weighteil and Jn^^l^ i^^? ^f
as afbrs'a ir»d ordaining flit
i
191J
34 CHARLES II. Procetdings against the Earl of Laudtrdalt [^19t
mony to be of aoe exact finnesand aci*nrfIjii{^'to
Uie trae stUndert of the kinf^dutne which is eliven
deaires fynne out of the tire and two grains ot
remedie ulse weill aboreas wnder as the said act
of the dait forsaid ^rnder the hand and sub-
scriptionc of Mr. Alexander Gibsone one of
the clarks of secret counsell bears to^ither a^so
with ane extract furth of the books «)f secret
counsell of ane band <rrant^d by John Falconer
son to sir John Falconer ane of the masters of
his ma'ties Mint as princinall and James earle
of Southesk Robert lord Carnegie Alexander
lord Falconer of Hackerton sir Alexander
Falconer of Chalilk Mr. David Falconer of
Glenqnliarq*r as cautio'urs and sovertics for
the said John Falconer daited the twentie two
day of February 1m. Yic. sixtie four yeares
wherby they are bound and obleidged con'llie
and se^rallie' that the s'd John Falconer shall
failhfullie and trewly ' exerce the office of
master of his ma'ties conzie house* and shall
totallie performc the duety incumbent to his
cbarfi^e alse weill in what may concerne his
ma'ties -interest as the good ot the leidges As
the sM extract wnder the h^nd and subscription
of Mr. Patrick Menzies ane of the clerks of
secret counsell bearing the said Itaiid to be
reg*rat in the books of priry couusill upon the
twentie third day of February lin.\ic. sixlie
four years l>ears And alse produced ane Report
of the officers of his ma'ties Mint in the Tour
of London to hir ma'tie anent the silver
monyes of Scotland daited the twentie day of
February Im. vie. siventie three yeares Item
ane extract furth of the books and recorcls
of privy counsill of ane order and warrand
from his maHie daited at Whythall the fyftcentb
day of May Im. vie. sixtie eight years pro-
rogating the Coynes of the copper money till
the first day of August Im. vie. sixtie eight
years terminat And concloude<l probation an<I
for the said earle of Lauderdale therin de-
signed Charles Maitland generall bir' John
Falconer master John Falconer his son and
John Falconer wairden there further innur-
radgement in his ma'ties service i*atitieing
and approveing all and wliatsoever quautities
of copper then already coyned by the said ge*
Derail and maistersor that should becoyoied
till the said first day of August sixtie eight years
And bv the said ordor authorising the same and
declaring the said ordor to be a valid and sufii-
tient exoiKM-atione to them of ther wholl actings
ip ther rex'ive offices anent the premisses and
commanding theutid warrand or unler tobt* re-
corded in the books of privy counsill as the Kaid
extract wnder the hand and subscripone of Fa-
trick Menzies ane of the clerks of his ina'tirs
privy counsell daited the sixteenth day of Jully
Im. vie. sixtie eight yeurs more fully bears
with ane act made by the lord comibsiont r
his grace and lords of his ma'ties privy cuiinsiii
upon the thretie day of March Im. vie.
nventie four years finding that the commis-
Moners apfiohited by them for compairiog the
haitl esseycs of silver witbia the cunzie house
"d 4or Dieltiog all the sud ^ipey peaces of sii-
ver and trying tlie fiiiness of the same have
proceedit orderly and circumspectly with good
deliberatione And allowing and approveing the
report made by them theranentand interpoDiDg
therautlioretie ther to and drclairing that the
geiierall master coyncr wairden counter wairdeD
sinker asscyscr and all other officers and werk-
Dien of hismu'ties coyn/.ie house had dewly
faithfully and uprightly wsed and exerced
ther offices ilk ane of them for ther own pairta,
con forme to the acts and ordinances made ther-
anent in all points and exonered them ami
every one of them for ever as the said act of the
daitc forsaid wnder tiie hand and subscripone of
Patrick Menzies dark of counsill more folly
bears Togither with ane other act made by tlie
lord's of his ma'ties privy counsell upon the
twentie fif't day of February Im. vie. siyintie
fyve years commanding tlie said general! master
worker the wairden essey maister compter
wairden the graiver and other members of
his ma'ties Mint each of them in tlier aeyerall
stationes and diarges to proceed to the working
and eoyning of the four mark two mark one
mark lialfe marke and fourtie pennie peaces
according to the tcnnor of the wamuMl moi-
tioned in tlic said act And that the sinker or
graiver of the Mint doe maik graive and sink
yrones agreeable to the circum8cri|itiones anA
impressioues of the severall spedes theria
mentioned withall dilligence wheranent the said
act should be to the officers and aJl others
whom it concerned ane suffitient warrand as
the said act of the daite forsaid wnder the hand
and subscriptione of Patrick Menzies ane of
the clarks of counsell more fully bears Tog;ither
also with ane prot^lamatione containing bis ma*
jefnicjs gracious pai done of indemnitie daited at
U indsor Castle the twentie siventh day of Jully
Im. vie. siventie nyn years togither Lyke«
wayes with an exlioncn^tione siipersCTyToi
be his ma'tie and subscryved be tlie duke
of Lauderdale secret'\ric dcclairing command-
ing and ap;»ointing ilie coynings of all cop|ier
money in six pennie and two pennie peaces
within the kiiigdoine of Scotland to be at and
upon the tenth day of February Im. vie. eight*
years terminat and concluded pro hac yice and
for the said earle of l^uderdale therin de-
signed Charles 31aitlan(i ^^laicrall sir John Fal-
coner master John Falcon .-r and Alexander
Maitland wainlens of the said mint and ther
sul)stiuits ther farder incurradgement in hv
ma*tit*s service His ma'tie by the said
ratiticd and approved all and whatsoever <_
titles of cop{>er then already coyned be the i
generall and maisier since 'the tirst day of May
Im. vi c. siventie siren or that should l>e coyned
till the tenth day of February uixt thereftir
Im. vi c. eightie years authorising the same aad
dcclairing the said writt to be ane valid aad
sulHlient exoneratione to them of ther wholl
acting in ilu^r rex'ive offices anent the pn«
misses and farder commanding the said writt to
be recorded in the books of privy counsill as tha
samen exoneratkine daited at Whythall tiM
fourteenth day of January im. fie.
and&thei'S.for Offtcial Mahtnaiionn,
TCflfs recorded in the bonks of privy couiiRill thrsniffT
n^ n Hclivprftnce n\vw (he back Vf*of upon the
•ivcatrenth day ol F*Miruflry Im. vi c eightie
\eiin* «nd aue net extra citni ifwitipon wmk*r the
nand and suNscriptione *d'Mr. Alexander Gib-
■one cirrk to ihe privy eaun^ill tot* tliu tyme
beans Toffither nfso Cviih one proclaraatmne
conceruin^ llie coyn daitcd i\\v. fifth day of
March uii. vi c. eii^htie one yeani ordaining
und ''■-'' in.r that m tyme y'rafterthe nnce
of I iihl he ill value ihreejiound four
^li I : mooy aod for ibnt eifect ordnin-
the four niarU peit*es which then ware
at fitlie fhrcc sliilllnp four pennies
should hi» current iherafter nt tiAie aix sluUin^j
and the inferior specie? uf thnt'COyne pmpor-
tiontahlc us the s'd proclamalione of llie diiitc
loused more fuJly henrs And the »aid sir Jcdm
Falconer compeii-and lie Mr. George Uftu-
nerinan und Mr. William Flcicher advocats
his i^ro'ri* who produced in preseure of thesaids
Jordsi nnc gift grantei\ he liis nia*lic wnder the
the priry seaM to and in fivours: of thcfiM
air John Falconer daitcd the last day of l}^~
.-,.., J, r.- ini, f i r. and sixtie years ratificini'' and
w)^ two former Fifls jcfranted hy his
... i .iher to the said sir John of the office of
master of the conie house of Scotland in swn
far 05 concerned him in the hutli tcnnor and
contents and of new piveing and cranting" to
the s'd sir John Falconer and after to hi* de-
ceSse to John Falconer his son the gM office of
ii!B<?ter of hf'« Ttm'tie* coynic house In the
^md to he eflTCeii hythem
:tr anc other dureing all the
^uycs ft iliiji' liletyme and lo t'ue lonjjent Ijfcr
o** them tvro tis the sM ^if\ more fully l»ears
And the sjiid Mr, James Fal<
}*en»onalUe who d eel aired he
Archbald Falconer and M -
other defundcTif Him >; 1-
lepionaof all the smf. ,^ ; -^
it;in! is wriit^i abovL iccil by them
Alleadgtince* and r« V ex'ive made
and projHjMcd for tliem in maner wnder written
rrptvrs d'tplyes triply es <juadrt!plyc» qunio*
/ivi? wilder \% fitten made therto witli the
umniondi comptccmpt hook^i missive
IrtK't:* ctmlracts hands tickets aod'wy' writts
atW mmtioof'd pmiUiri'il ntul d^ |"i*Ui'»nes of
A
nJt^Hiu \\\ II iogiiiier
M ith ihi: eirt I me against
lll«. ...k ,1.. ..y..:rp upon
tht ttecf to
th nrctll
!ie
ry ply ativyned liie iiaKU lonis of counwll and
a«-«naiie decern en jiiid ordtnTtr-; the snid
Charle* carle of Lauflerdak' ! id
Mr, J amc« Falconer as repi mI
deeeist John Falconer Initc v. ;ardcu hif» farther
Upon anft or o^ of th»* paKHiv** Itllps ahoip
A. D. JG85. flOl
John Drummond of Lttndie hi$
ma'ties rhe^aurer depnt and Uu^'h Wallace bit
ma'<i«.-<t ea«th keeper for his highnc«*?\Tst* nod
lirhove uf the fiounie of twentie shill
of free profeit upon ilk ptnmd ot
thousand Rton of copper Wfnlk thcsfiuN lortU
ffinds to l>e coyned he the saiil gcneraU anil of-
ficers of hiK UKi'tifs mint in ine tir^' r
jurnay more nor was i\] lowed he ttie
extendioHf to the soume of two hnudrti V, , ,» ^ ,,. .^^
four thousand pound** Scots mony and alsethe
■aids lords deceniit .in.f mriniu-t the saida
Charles carle of I liard lord
Maill and general Is mi . ritasii r
Mr. James Falconer as n f
deceist John Falconfr his ; t
upon ane or oy' of the ; Is above
mentioned and Arehhahl 1 - so counter 1
wairden definders (whom the &;iitis lords (indi
Tyahfe ^ ^in^ulos in fwiidum^} to make payment
to the saids lords high thesauror thesaurer de*
put and cash keeper alcove named for hit
rua'ties wkc and hehoff of the 5:oume of twentit
?fh»llmc Hcots of free mony upon ilk pound of '
fyvethoii«anil four hundreih fourtie lour ston^
ol' ropf>cr Whilk the saids lords fHndt more nor
was allowed he the M' a rrand«i the second copper
jurnay befur the art of indemnitie extending Ifi
the soume of eightie Rivcn thou^sand oyn hun-
dretli and four poimd Scots mony with threltt
two shjlliner Scots for ilk ))ound of three Ihous-
antl nyn hundreth nyntie nyn slon of co^pef
Whilk the Baids lords finda to he coyned olW
the act of indemnitie extending' to the soum#
of ane hundred and two thous^tid threi
hundreth nynti« eight pound cig-tit shilling
mony forsM And lykcwayirsto make uayitioMi
'^ ' fiaid lord hig^h th e Jan rer lord the?saaref
and ^a^h keeper nbore nametl of tht
.'t' of nvn thousand fyvc hundreth threttt
two pound lour shilling- Scots Ar the ditferenet
found be the «aids lords of Uie finnes of tfjt
mony coyned be them from the fi noes of tht
indented atmidart plate appointed bt* his ma^tit
from February Iro, tJ c. ku ventie lour lo Au-
trust 1m. vi e. ei^htie two years and of tht
Boumeof ane hundreth fourtie three thousand
siven hundreth twentie six pound mony fors'd
a» the value of ane hundreth and eig^htie lwt»
j St on two nnces'two drops of ClusitcHs headt
tweejis and scraps Which the saidii lonls flindt
to be coyned he them without any nssey since
the act wf indemnitie and of tlie souniu of
fyve thousand Ihree hundreth eighlic six
fKiuutl mony forsM as the profeit arysioif hy
the difference of the dean of Guilds \vci|t,diti
made use of by them from the Scots jjyll %<ii%i
doun hy bin maHie and of the soume of si^
thousand and six hundreth pounds fot tlk; re*
medirs of weight of the silver coyned frorif
rhe fjr«t day of 53eplemher Ihk viC. seventi^i
three veers' to the first day of Sej^temher
Im. vi c* eightie two
maintT the itaids loni
RHtd C 'Imi-h-H V7\v\i of '
\'tMjr'* and
m fykt
laini the ^1
itanl tor4
ih r laif
-oK:tuU\*
lUl., Af»
i}
\
34 CHARLES II. Proeeedmgi Mgaimi the Bnrl ofLamierdak [196
tterliDgr contained in the ticket g^rantd beiir Jobs
Falconer to liim with thea'rentstberof firom the
first dny of January Im. vi c. sixlie nyn yevt
extending to eight thousand nynf hinidreth
tiventie eight pound mony fbrsaid And tht
saids lords have remitted and beirby remittt
the second article of the forsM ly beJl mnent the
twelve shilling upon the unce of bullione and
the eijght article anent the profVita arryiiDg to
the king by the bullione given in to the offioen
of the Slint yearly and not coined to the lord
bight thesaurer the officers of the Mint beiog
rcgullarly and in course lyable to oompt to him
for the samen And als the s'ds lords have as-
soilzied and lieirby Sbsolzies the said Ricfaaid
lord Maitland and sir John Falconer ffom the
points of the fors'd lybell in so i'ar as coBoeniCi
the first copper jumay And assoilzies ij» s'd
lord Muitland from the a*rent of the kingf
stock of twentie thousand marks and the
annual therof for tiie years preceding the twentie
third day of September im. vi c. sixtie eis[bt
years and lykewayes the s*ds lords aaeolnss
the s'd sir John Falconer from the s'd a'rent
of the K*d twentie thousand marks and an-
nual Is thereof for the years preceedinff his
entrie to the office of the master of the Slint
And in lykemainer the saids lords have as-
solzled and heirby assohues the haill deleiidcn
above named from the a'rents of the souma
above decerned except as to the a'rent of the
s'd stock of twentie thousand marks appointed
by his ma'tie and four thousand nyn hundreth
pound of douUe payment and the six hundreth
I)ound sterling contained in sir John Fakouer
ticket to the earl of Lauderdale and decencs
and declares the s'ds defenders quy t therof and
free tberfrae now and in all tyme cominff
Becaus the tyme of the first calling of the s'd
action and cause in presence «f the saids lords
the said sir George Al'ckenzie his ma'ties ad-
vocat and sir Patrick Home advocats for bii
highnes interest haveiug repeated the Brsi
article of the fors'd somonds bearing that albeil
by the comooe law and laws of all nationes the
coyning of mony without warrand is dis-
charged especiallie copper or black mony and
by the laws of this kingdome and particaHaii|y
by the eighteen act paiTiament the third king
James the third and that tlie kinss ma'tM
haveing since his resturatiun granted wanand
for coyning of six thousand stone weight ef
copper at two severall limited tymcs Yet tka
generall and master and other officers of tha
mint have coined iburiie thousand stone weighs
of copper and every pound weifirht of copper
haveing yielded to them thrcticvix sluUiitf
Scots of advantadge they most be lyabie
*' singuli in solidum' to refound to the king Ifaa
some ly belled and declaired his ma*ties ad*
vocat insisted tor the fors*d the thretie lonr
thousand stone of copper coyned by them si
the tymes above mentioned more nor the siS
thousand ston allowed be the warrand extSBd-
ing to nyn hundred seventy nyn thousand wmk
two hundreth pound Scots Against wbioh il
wasallesdged by thss'dearle of LsuderdalsaaA
195]
to make payment to the said lord high the-
saurer lord thcsauier deput and cash keeper
above named for his ma'ties wse and liehoove
of the soume of twelve thousand three
hundreth sixtie eight pound threttin shilling
four |)ennies Scots mony as the profeit of the
cxalta'ooe by crying up of the mony arrysing
from the bullion payed in by the marcnands
since the daite of the proclamatione and not
compte<l for And als of the sonme of twelve
liundreth twentie eight pound tberteen shilUng
tour pennies Scots as the profeit of the exalta'one
arrysing from the bullion and current mony be-
longing to bis ma'tie and lying by them 1 he tyme
el' the exaltatione And lykewayes of the soume
of fourtie three thousand two hundreth uglitie
six pound Scots as the twelve shilling upon the
unce of two hundreth and eightie ane stone
twelve pounds fyfU^en wnces and ten drops of
doUcrs and doucatdouns meltcil doun from the
siventeen day of January lin. vie. slvenlie
throe y cares untill the first day of January
Im. VI c. eightie two years And lykewayes
the saids lords decernes and orduines the saids
Churles carle of Laud(^rdale and Richard lord
I^Iaitliind generalls and sir John Falconer laite
master of his ma'tics Mint sin^ulosia solidum
to make ]mvment to the said lord hig^h the-
saurer lord thcsairer deput and his ma'ties cash
keeper above namc<i for his uisiHies wse and lie-
hoove of the value of the ordinary a' rent of the
fors'd soume ofiwcnlii* thousaud marks allow-
cil and payed he Xxva inu'lie to the saids generall
and maister of the jVliut I'or buying in of bul-
lion (und which uas not accoirdlngly done)
and of the ainniul oi' the aVentpro ra/a as
followes viz. the said C'liarles earle of Lauder-
dale of the said aVent of twentie thousand
marks and aimiiall for the said a'rent yearly
aUer it becom due from the year Im. vie.
six lie two yearK And that the stock was ap-
pohited by his ni a' lie untiU September Im. vie.
eightie two years extending to the soume of
twentie lyve thousand six hundreth pound
The said llicbard lord Maitland the other ge-
nerall of t])e Mint of the said a'rent of twentie
thousand marks and a*rent of the said aren't
yearly after it becam due since the twentie
liiinl day of September Im. vi c. sixtie eight
years that he rceeavcd his commissione And
the said sir John Falconer laite master of the
samen a'rent of twentie thousand marks and
a'rent of the said a'rents aller it becam due
yearly since his entrie to the office of the
master of the Mint Ami als the saids lords
decernes and ordaines the saids Charles carle
of Lauderdale une of the saids defenders to
thake payment to the said lord high thesaurer
\o\\\ thesaurer deput and cash keefier above
named foi* his niaHios use and to his behoove of
the forsuid souiue of four thousand and nyn
humlreth pounds rceeavcd be him in double
payment of his said tliree years sallarie with
the value of the ordinar a'rent thcrofi'forsaid ex-
tending in all to the soume of siven thousand nyn
hundreth twentie ane [lound ten shilling Scots
And of the forsaid soiune of six hundreth pound
fffirf other $, f&r Offtdal Mi
lord Mnitlflmi iher pro'n* above nnmed Primo
tfiat thcr coiilil be tich* proc*'a snstained a^H
ibe lord Mailland bccaus he b^ing out of the
tdogJotiTe itii* t^rnr of ilif* raising of the
■mnomh was cpitleJ upon siitie it;tys atid ihe
rfny of coniperranee> is not yfteome Ami for
the carle of Laiiderdiile and oy' dci'tndm's
*l»<j\i , , " ' _ ihequantiHr ^ ^s
<if 1 lit iiiPiistt'd I ^d
thhi i'nv lit/itrnii rs iMJ:;iiL tO lit ASSwI/^uni i ninO
becatis the act d' purliament founded one dis-
ell«rg€tonly thecoyniiig of black money hy pn>
▼at pH«one$ or incorporations the same havting
been practised by some touties wlierof ll»er aie
peaeea yet extant And iJie act was made for
tlie remedie of (hat abuse aod wat intended in
fftTOurfl of the officers of the Miut and not
agaiati them and it can not be instanced that
ever Ihe officers of the Mint ware called to
queatiotie for auie qiiantitias of copper co^ ntetl
nor did they coHipt tor any pro6t and eicre^
of the copper coy ned the same hcinpf alwnyes
l»ooked one a perqniffft of Iher ot" mIo
Ibe king hes gra ntcd exonerations '■ - 1 *
TBllanifoy* officers of the Mint inru fn the
first copper jariiay and the second Terlio Uie
defc^n are sccnretl hy the act of iudemnifie
siTentie nytie wherbjr not only these are in-
dcmoified who ware in the retiellionc hm alaoe
allperaones tn pdhlict tru4 nn to ther tnalver-
sationes or roisdimanrs and any persuit a^inst
them aither adrendictam pubhcnm or priiraiaiti
is di^har^ To tvhicli rt wus n^plyed lie the
said sir George M'Kenzie his ma^ties adrocat
and sir Patrick Home advocat for his highnes
mterest perse wers that his maUies adrocat
insists primo loco agH the earle of Lauderdale
and the other defenders called and as to the
I other allcad^ances the lybell stands relevant
notwithst ' " 'icrof Becanse :s~ ' ■' '^rst
alled|[rea;, wer and priviU n-
ingbint^. ,,-.4,.,iand the same ,- ^. ^,^1-^1
lin|>orlaiice both as to the kin? and the sub
jeclA atid the act of parlia't niaks uoe diNttBC^
tionc hut generally prohibits the coymnsj of
black money without warrand And it is the
publict interest of the kinLfdome the cop(»er
mony should not he coynd hy the officers of
theoffictirs M' tlie Mint at ther pleasure seeng
by hovi^ much hiack tuoney is incresed so far
l^ttlie !(tlvcr coyo shbaited and it wold be of
JBfctter danger to allow hbertic in this to the
i^Dcers tif the Mint then to other persones
who wmler that pretext alight coyne alse
I much black mony as they pleased to the pre-
judice of tred and riiiue of the countric And
it is a fVi
act of* I*
or inctK,.-.
filQiiv ieeng
simpV and -.
far*!
Ttni:'
..11.--r|;
c that the
tiu to toiuii
t o yne black
nig ot black mony is
I it ^c barged And a* a
ers of the Mint
;. wahoiii unrrnnd
'Ulehtm^elte as gene rail of
lire iitie act of parliament \u
the year iin w c. sixiie aue to warrand him
iM tb« i€$t^t ilie olBccij of tho Miat to coync
three thousand stone of eop|ier the first eoppef
jurnay And ane act of Cfiunnetl tn the year
Im. VI r. siventie three ior coyning other three
thousand stone the second coj^er jurnay Ani(
it can net er be instructed that ibe li»nner otfi-
ceriof the Mint did coyn anie coper wiihout
warran^l and the reasonejs why they **are
never petsewed for l. ' i ' ruid*-
beeaus they ware al« ; I dul
not betray ther trust nuii amuhL-ii tin uhilj and
cuutrev bycoyning of moiH? copper mony then
was allowed by the warrantlt* as the la do
olHceni of the Mint hes done And efco tho
former officers of the Mint dii) not pretend to
hare tlie benefite of the copper coyne a* 11
pertiulslt of ther office hut only by a parlicudar
allowance or donatione from tlieltinsj And ih«
earle of I*auderdale himselfe knowing that the
copper coyn was not a perquisite of there offict}
he proci»r<^d n particuUar gift from ihc king of
the lienefite of the ane halfe of the copper tha^
was allowed to be coyne<l by the warrandd
And Ihcrforthe 'I" ' in swa farr as ibey
liavc ex'ceedeil 1 1 1 I > aught to he tyabtu
to the kin^ sini^uii lu ^uHiium and cannot be-
long to them as a peniaisite of ther office Ami
as to the second alleadgance founded upon the'
e.vonerntiooes it was replyed that the exoner-
ation es cannot liberal the defenders from the
abuise and mahersatione committed tn re-
latione to the copper coyne at the last as in
what was coyned more then what wa« al-»
lowed by the wanauds becaos the exonera-
lioncsrelats to the severall warrands grantetl
for coynifig of copper money the ane in the
year 1 m, vi c. and sixtie six years and the
other in the year Jm. »ic. eigbtie years thd
first in the ^id year ]m. %i c. sixtie six re-
lailttig to the act of parliament in the yeare
Im. vie. sixlie ane for coyneing" three lliou-
s&nd stone of copper and flie other in the s*<f
year Im. vie. eightie rctaiting to the net of
codnsell forcoynmgoy' three thousand stmte
And albeit his ma'tie did nttit^e atid approve
the quanbties of copper already eoyticd or that
should be coyned betwixt and the day theria
mentioned and exhoner.'i the officei^ «i* the
^fitit of ther wholl actings in iher rex\ve
<»i i! the premisses Yet thai cane ntily
U Hid of the coyningof the qininUtic'
of coppfji" contained in the acts and warrand*
grantef) for ih»t eHeet to which these warrand*
«l ' :ie hut can never be ex-
ti rat them from the abuise
uiitj HI tiiLoauntiev Lu coyning more co|»er
mony then they ware alloweil and which is soc
liirr contrar to h' -t--t'ft of the great pre-
judice thai the ' uiint^ by soe much
copper mony i-. l . „_^vJ by many acts of
parliament even wnder the paiue of death And
u is %ery wei 1 knowen to such exoneriiiionei
tmiy Iw* procured upon a mi«rcpreeieniati<uie by
the laws and customs of all uattooes nf»c i^ucn
gilts of exonerate one are sustJ«inf>d * nise pre-
♦ ii('n veritate in tanium* and therfor untetf
t t.vtioneM did bear exprcstj tfae
ti ocaand mftlversaitiuiiei
J99J
34 CHARLES Li. Proceedings against the Earl 0/ Laudardak [100
Aud that Aoiwiibstandint;^ tlie kinffs ma'tle
had exoDred them * ex certa scientia' no such
gtineraJi exoneratione cane be sustained to up-
perat any furder then to exoner thein as to
ther acting in relatione to the six thousiand ston
allowed to be coyoed by the warrands And in
the caise of sir Walter Seatoue uho was lurks-
ruan of his nia'ties custonie house ulbeiihe hade
coupted to the excheqV and obtained ane exo-
neratione and discharge from the kiujr under
tlie great seall yet therafter beiu^ called to ane
accoiupt by vertue of a cumissione from the
Kiu^ and it being found that the king was
prejudged in the accompts made notwith-
»ta..(!iijg of the dischargi' he wtxn necessilat to
pay in to tlie king fy\e thousand pound sterl-
ing At nhich tyiue the lord thesr dejmt
in as sent ns ane of the commissionevs and this
same defence being proponed before thecom-
uiissiouers appointed by his ma'tie for tryall
of the Mint They jTand that these exonera-
tionesdid only relaite to six thousand stone
which was allowfni by the acts of parliament
and counsill to be coyned within the ty me con-
tained in the war rands and prorogationes
nien*t in the exonerationes And therfor was
not ane exoneratione as to what copper was
more coyned then the quantities contained in
the warrands to which they particullarly re-
laite as appears by the report which is ap-
proven by his ma'tie And as to the third al-
icadgance founded upon the act of indemnete
it was replved that the act of indemnitc can
oot secure tnc officers of the Mint agaiust the
abuise and malversationcs committed by them
Prinio becausit appears by the narrative of the
act that the occatione of the makein^ therof was
twofold ?iz. The tresonable prinri|des of some
pcrboncs ag't the goVinent both in church and
state and the rebellions and disorders that enswed
u)>(»ii the same one the auc hand and one the
otiK r tlie hiimorons factions of discontented
Iinii.Lcs uli:» wndcr the pretence of gri^auccs
jaii i;iisi-c;»ri'senlcd the pnblict judicatories
and hail tlicrby waikueJ his rna^ties aiitho-
retie reiirchcuted in the same and that his
ma' lie was gratlously pleased to reclainie and
M'cnre both TliHrforhis ma*tie u\m\\ the nar-
rative forsM allenarly doth by the sM act
seciirr btith the persones dissatislied to the
govortnriit and the governors and ministers
uud«.r lii-> ma^tie in iiiuiner tl.crin mentioned
And Ivkwayes doeth indcninilie and secure
bis ministers and pcrsoucsinti'iated hy him in
relatione to any tliiu^ (lone by t!iem in his
majesties service and |K»rsewanee of the same
and asserting his ma'ties authorety as appears
Inith by the <«M act and a pap^r printed about
til at t/me intituled The Narrative ut his 3Ia'tIos
IVcceediiigs and Privy Counstilj I'rocccdini'b
in Scotland whitih bcHiir the only rl .i^i^neuf the
fc'<f:ictaud hisnia'tieiindthecownov'! i.avin;: noe
iithtr thing in ther conteinplaliune it is wnjnst
and inconsistent with hunour ofthe counsell
afid ciiunselloi-s that it should be strcached and
•xtt'iided to any othi-r crymcs and deeds that
i^u nut bti kaiJ to havti baeu done upon gcca-
slono ofthe ti'ubles and out of zeal! a^ost dis-
satLstied persones for mantaiuing hia maUiei
authoretie and which he liad connexoue with
or in relatione to the trublcs But by the con-
trary was done against his ma'tie and to abuise
him wnder trust such as the malversa'uo in
the maitter ofthe Mint which being a part of
his ma'tes stock and soumcs for defraying the
necessnr chargts of the ^overment it at any
tyme aught to be most faith fullie and honestly
manadg^ in tyme oftrubles And therfor the
statu torie part of the act cannot be extended
beyond the narrative and premiss* thereof
which was the causa inductiva of his ma'ties
granting the act of indemuitie 2. These words
that persones in a pnblict statjone and trust
should be indemnified and generally all such
as are lyable to any pei-suite for any cause or
occasione relaiting to aniu publict adraiuistra*
tionc by contriveauces actings oppositiones or
oy 'vvayes preceeding the daite of the s'd act ar
< verba hanonima* (sic orig.) and such wohli
aught to be interpret and restricted secundam
subjectum (sic orig.J materiam And therfor
seeng in the latitude of the s'ds words they may
be comprehensive of sh'rifsshirriff deputaclarki
comissars and all such persones ^fhich cao not
be denyed in some sence to be in publict sta-
tiones and trust And it ware absurd to say
that such persones were indemnified for tber
unfaithfulness and malversatione in ther sta-
tiones and trust the saids words cau be na
waves understood but to secure officers of stale
andf such persones as are in ther statiooe as
counssellors and officers or as members ofthe
armey be questioned as haveing an^r wayes
overacted or done amiss in the tyme oftrubles
out of zeall and for promoting his ma'ties
authorety and service As also persones in
publict trust according to tlie ordinare accep-
tatione of the word are only to be wnderstood
such as are under his ma tie and his interest
and trust in the adininistrationc of the gover*
inent of the kingdonic civell ami militarie as
the judicators aud specially the counsel! and
ofiicers of state and commanders of the
forces se^ng such persones lies only such
publict adininistratione as the interest of his
ina'tic and of the wlioU kingdome directly
and immediately and vet the officers of stals
who are indemnified by the said act as to ther
publict actings in capacity of counsellours ars
not indemiiilie<i as to ther privat actings and
malversations if they ware guilty of any relait-
ing on lie to his ma' lie and not to the trubles aod
publick And it cannot be said that either ih$
commissinnei-s of the tliessaury or thessaurer
depot or sir William Sharp cash keeper or any
haveing interest in the Exchequer are by th9
act of indemnitie secured and exempted from
counting and nialversa'one in their trust if
any should appear S. The act of indemnity
bears this express clause yt' it should not Iw
extended to such crymes as never wses to hrn
comprehended under generall acts of indenmitM
But 80 it is the crymes and malversationcs com*
milted by anio of the kings servants and offi«
301
and otktrt.for Official Matetrsationt.
A. D. 1682.
laok
cert eepeciiJiy in relutJoDc to hib iii&'ties re-
Teuewes aud jmhlicl moucy such as the Mint is
are not in wse lo be conmi ebemleil under ilie
acts i>i* mdetunilie For tlie act ot'obliirione and
iiid^mnitie by kin^ James the fift parltanieni
MJCt caput iiyntie two and act wf tndeinuity
be ijueeu ^\\xv'y paritameDt Dyiilh cliapler tbe
maventbb !»esivt^u reloits oufy to crymes ca-
uiilted dumu^ tUe truMes in the counirej and
rttK'lJionv but not at alt to abuses or iiiahersa^
tioLies cunintttterd by the kin^s ofiicers and ser-
Yttntsiti tyuitf of pt^ace especially in relatione to
I he kint^ s nvenew publict mony or wbut con-
cei'des the ^lint And the laU act ot'indeinnitie
in the )ear Im. vi c, sixiie two bears aoe ex-
press exct:pttoue of all publict moneys iutro-
milted *^ itli he any of his majebties officers tor
whii'li they bade not dweiy counted and re-
ceared discbarg^es tlierrif by such as pretend lo
iiare authoriiie lor the tyme to doe the same
J^y wbich it Is evident that the crymes and
DialversatioDcs committed by any of his inu'tie!«
ijtBcers or servants in relaiioue to bis 4na'lies
rcrenncij and publict nion) such as the 3Iiutis
are never comprelif tid it wuder the general I
acts of iDdeninity whtch doe only properly re-
laite to the trableii in the cuntry 4" The s'd ac-t
of indemnity as all former acts of indetiiuity
bears ane express exceptioite of all privat
crymes and albeit ilie officers otthe Mint may
{jreteiid to be pei-sones in publict statioties in a
airge sence au all persones wndcr his ma' tie may
besMas customers collectors and such Ivke
yet it can not be said to bo in a publict statione
relaiting- lo the government and a pnhhct atU
inini^rutionc of the kint,^dome wnder bisma'be
and to have been persewein^ and promote
ting his ma'ties service is onlie meaned and
Intended bv the &M act seein|; the said Mint
and Mini house and officers^ of the same does
not properly and imcdlately conceroe the
|yovtrnmeut but only consequentially as to
ult bis lua'ties other concerneti for it is a par-
licnllar interest of his maHies belonging' to
hltn by his prera|rati¥c and the officers therof
iher malversaiiones in thtr respective stationes
are not malvej'sutiones in any publict statione or
trustor admini^tratione belont^in^ to tlie wholl
kin^donie but prirat delicts ami such as have
no relatione uather to the government but con-
sequentially or to the trubles soe that they
irould have been vvbitlter tber bad been any
Irnbles or not and ci^nsctjuenlly as to all other
privat crymcs which are not occasioned
by thy trublts was ever excepted out of acts of
iiidemnitie And in speciall out of the %\\ kite
act the ireacbcrie and malvcrsatione of the
officers of the Mint in so' sence reasone or
justice can be tbou^lil to be iudeniifietl y'by
5to The same defence being proi>oned by the
officers of the Mini befor the commi^ione'rs ap-
pointed for tryall of the Mint a^ to wbicb the
(;i>inmi«^ioners ware of tlie oj^pinion that the
act of indeinnitie being only ^raatcd to those
that bad acted in or against the publict gover-
itient of the kingdom and not the deeds of mal-
tarsatione in iny pirlicullftt or pecalliitr statione
ubicli hade no connettione with of in relation© j
to the trubles or disorders of the countrey iik I
maitters relailiu^ to the publirt govermeat of]
till* kin^dome as ap[)ears by the report whicU I
itt appro yen by bis majestie H herein lo if waft J
duply ed by the s'ds earl of Lauderdale hiftl
priors above named that this proces is not onli« J
of great mifiort as to the p«i^sones ccnreene4;J
but also as to the preparative if the kings re«'
peaCed exonerationes and ane act of iodemottjT !
doe not secure persones in publict offices as to^ j
tlier maber£atioue in ther offices Ami ss to tha]
act of parliament founded one Anss^t» it con>
c ernes not the subjt'ct of this article for Uie
was a kind of black luony which was not [
per money 2o Albeit the act ware to be wnder* [
stood of copper nioney yet it does not eoncerD# J
the officers of the Mint who are the king« w&rm\
vunts in that office hut only pri vat persones oiij
incorporationes co>iitn^ black moiiy without f
warrand as is clear from the words of the ac^j
and from custome which is the best interpretee ]
of the law For it cannot he instanced that anyi I
officer of the Mint was ever drawne in ques-»^j
lione aither as to a civell or criminall effect for f
exceeding in the qnaotitie of coynadi^^e And;
the fors'd act of parliament graufs power t9 j
shirriffs to coovecu the transgressors beibc
them which inaks it t*vident that the act is i
applicable to the officers of the Mint and the
Mmt of this kingdome is also exact in its con*
stilutione as in any oihcr nation for tbtT artf J
juruayes made of the silver coyn ;uid accump%]
made therof lo the exthcqntr But as to thcfl
coynad^e of copper iilbeit ilvur be nece-ssity o£ j
a war rand for the peaces to Iwj coyned the eha^*. J
racier and impressione the cjttrin sick value a|1
which the same is to pass and the tyme XomX
coynadge yet tber is noe litnitatlon as to thft [
3aantilie except the kiDyfdoine he overbur^^j
eued with copper mony And in tins caicethfti
copper mony and iptanulic thei^f coyned ii|l
the Hrstjurnuy was fouud too litle for the ws#1
of the cuntrey insof^furas the warrand {^ranted ]
by the counsell for the last copper jurnay pro-
ceeded upon ane re pre sen tat ion e from thi
royall burrows who ware most concerne<l i
ibc coynndg'e of more copper money was foC |
the acfvanta^e of the kingdome as appears ' ~
the act of counsell Terlio the general! oft
Mint lies right to the half of the benefite of the
half of the copper coyne by gift from hiii uia^tiol
and the rest of the officers of the 3Iint bnv^J
rirrht to the other hallb as a perqnisit of iheftj
office and since ever the king hade a MinM
Uiey never compted for tlic bcuefit arrysiagj
from the coppex coyne Secuudo albeit thu
coynadjEfe of more then was contained in 1
warrand ware a cryme yet the defenders ar^l
secured by two exonerationes And wheras it i
all cadged that the same can not be extende
beyond the warrand s to which they relaiti
Anss^rs it is necessary that the exoueratioD^I
should relaite to the warrand because the kin^
in the exooera^one was to tenuinat the lyraeof
coynadge But after relatione of the warrand and
terminatiotie of the tyme the exooeratioae rutfi
3i CHARLES 11. Proeeedmgs mgamsi tke Earl of LimArMe [904
liable to any penotte for any cause or ocisasione
relaitingf to any publict adiDiniatratione by con*
tryveances actings ^:c. And discbarginj; them
either to bepersewed ad ▼endictam publicam or
privataiD and all judges are ordained to inter-
pret the same with all possible latitude and Ak-
vour And wheras it is alleadged that albeit
the defenders be secured be the act of in-
demnitie as to any punishment yet they
must be lyable for damnadge and interest
Anss'ris this persuit not beini^ founded one any
right the king bes juredebiti but upon a cry me
be excess of coining of copper contrarie to war-
rand which inters ooniiscauone as the crymeof
malTersatione is extinguished by the act of in«
demnitie so that the damnadge and interest ar*
rysing therefrae is also taken away To which
was triplyed by the s'd sir George M^Kenseie
his ma'ties advocat and sir Patrick Home ad-
vocats for his highness interest That they
oppon ther former reply as to the exoneratioiie
and act of indemnitie and it is cleared bv the
act of 'parliament that the coyning of black
money witliout warrand is simply and abao-
lutely dischaived and that wnd«r the paiae of
death And Uie law make noe disunethne
whither the same be done by the offioera of the
Mint or oy' persones but all personea what-
soever are discharged to coyn black mony and
* non est distmgueudum ubi lex non distinjifiiit*
And thereasone why non of the former ofimn
of the Blint hes been called in questione for ex-
ceeding the ouantitie of copper mony allowed
to be coyned hes been because it seems they
ware alway es honest men and hes not exceeded
the warrands Neither can it be instructed that H
they did exceed and being conveened that they
ware assolzied upon that pretext that they ware
the kinjTS officers of the Mint who certainly as
they hare the greater trust so they ough( tha
more to be severly punished if they transgress
And albeit sliirriffs and baiilics of borrows bjr
tlie act are appointed to make inquisitione if
any such striking' be made yet it does not fol-
low that the act should be therrrtbre understood
of prirat persones or incor|>oratioii(.'S Uiut strides
black mony but because the co> uing of black
mony is so' great a prejudice *^to the cnntrey
and tread Therfor the sliirriffs and baillict
ef borrows are appointed to take inquisitione
tberof that the stnckers be broghtto thekin^
and punished whither thoy be officers ofth6
Mint or oy' persones And in swa f'arr as the offi-
cers of the Mint exceeds ther warrands they
are but as private persones and aught to Ml
punished accordingly and the reasone why
ibrmei'ly ther hade been no coinpt made to ibe
exchequer of the copper coyn was because pri*
rat persones nlwajes <fott a right to what was.
allowed to be coyned wjjp durst not exceed ther
warrands but certanly if they had exceeded
ther warrands they ware alviays' comptable tit
the king for the same And in the coynailge of
copper ther is an essey for a warrand of the
peices to be coyned charecier impressione and-
mtrinsick value at which the same is to paai 86
much more as to the quantity that the cantregr
MS]
OD a distinct narrative vis. the kings ma'tie
for tarder incuradgement of the officers of the
Mint in his service ratifies and approves all
and whatsoever quantities of copper that ware
coyned or should he coyned betwixt and such'
a day and so the excesse albeit it had been con
trar to law yet being befor the exoneratione and
the same being conceaved in the terms afors'd'
does fully secure the defenders ther being noe
necessity to express the quantitie coyned And
as to what is alledged that the exonerationes
ware procured by subreptione and obreptione
Anss'red obreptione is not presumed unles the
same be proven and subreptione is not relevant
otherwaves not only this exoneratione but
many other gifb granted be the king might be
evacuat and wher grants from the king bear
these words * ex proprio motu ex certa scientia
or explentudine iK>testatis' or wher ther is * reite •
ratio actus' as ther is in this case tlier is no
ground to allead^ subreptione or obreptione
and ther exonerations are not of ane unuswall
atile but run in the ordinary stile of exonera-
tiones granted formerly to the officers , of the
Mint atler which non of them were ever called
in questione And albeit the warrand be relaited
in the Narrative yet theralW his ma'tie ratifies
and approves aU and what;M)ever quantities
coyned and not restricting the same to the
quantities coyned by vertue of the warrands
and all exonerationes granted to persons in pub-
lict trust or employment most relaite to the
trust and imploy ment but if the same should
be restored in so far they walked legally the
exonera'one would be of noe effect seeing the
law secures them in soe forr as they have
walked legally And as to what is alleadged that
in a reiuissione the speciall cryme must be
exprest Anss'rs the case is different for in re-
missioiies persones are considered only as crimi-
nally but exonerationes are of a mixi nature
and considers the merits of the persones and
ther mistakes or erroures they are obnoxious
unto and non are more obnoxious then the
officers of the Mint Tertio albeit the excess in
the quantitie of tlie copper coyned had been
a crown it is taken off by the act of indemnitie
and wheras it is alledged that the same is
only as to publict crymes but not as to malver-
sationes by persones in ther offices Auss'rs the
act of indemnitie is opnoned which is a na-
tional! securetie and auglit not to be infrineed
and the main designc therof was for securing
persones in publict trust for besides the publict
rebellione the act enumerates vy' crymes viz.
out* of misrepresentini; the publict judicatures
and ane other of malversations of persones in
Jmblirt trust And as to this last the act is more
ull then as to any other it being declani
that the act of indemnity should be alse effec-
tuall as if e\ery delin<^iicncie or misdemanour
wer rxprest and as if every pcrsone had a
speciall remisHione past in ther favours And
the act is most comprehensive in ther favours
also extending the same to all who had advissed
any thing contrary to the laws that had mal-
Tsraed in any publKt statione or trust snd are
^( ken t fur OffUial MahtrMttom.
A. D. iGSf .
[808
ut orprfjunlrniHl with sucU bmse inony
rMcli U i it far cunv€?iiteiic<f of cbaugw
•nil f<»r Li> I of |i(Kir [leuple hut not to be
' istfdc use €ii u;> ti> tUe ordinnry change of troile
«Qfl cunitucrce! the extrinsick vahie beings so far
l>etow thi:* true value of ntuoey and albeit the
generallfi of Mini have right to the halfe of the
tNiiiper by a ^ift froia his ma^tie And that the
orooers of tbt? Mint have ri^^ht to the other half
ftv n pt^rc{!iisit4>l tber oflice yet that can only be
iJuders;tiH»(J ui' whwt i^ alh*wed lo be coyiied by
ibc waraiidE viz. that th? six tbouiiaDd ston as to
which tliey are m>l now called in qiiestione
But that cnxi never be extended as to what was
coyneil Tuor« then was contained in the viar-
rancU lor if that ware sustained then the gene-
rails ol* the Mint needed not to have given a
wsrruid for co^uing any copper as aho if
they had hhertie to coyne more nar was con-
tained in the h arrand Then as ih»\v coyned
tlierty or foi-tie thousand stone more so by the
snrtie rejiKone they mi^ht have coyneil aue
hundreth ttiousand ston more and by this ac-
count tfier should have been nothincf but cop*
per mony in the oouatr^y which was abiiurd
And seeng^ his ma'tie was ^ratiously )de»^d to
allow the generatis and otfu'eni of the Mint to
coyne six thousand at two severall journey es
which was a very consiilerable giiX they itare
in pcMiimo dolo so far to abuse his nna*ties sad-
ness to coyne more then was alloweil by the
warrands And the exooerationes alledged
upon does relaite particullarly to thequantitie
menttonef* iu the warrands als weill as the tynie
Within which the same is uilowed to be coyned
and tiie prorogutione of the tyme mentioned in
the warrandH was nnl»e fur cleaiiuf;: the house
of the remfinderi of the copper that was un»
cuyned whirh h ordiimr to be grauied in such
ca^e^ but niH'd not to idlow any £^reaiiT (juan-
tilif to t>p cuyned then was contuineil in the
warrands nn ii clear fron* the severall prorogn
tii»uc« and exonerattoues ^ And albeit ihe
CTtoneraiione* had been never nubrep Hones or
ohrepdones as certainly they were yet seeng
ihey relaiie only to the warrands they can be
m» iwriw exl«oded and for what thedefender
490yiied more then was allowed by the warrands
Itie delenilcrs cun o^ver be secured by the act
of iuflctnnity for the reasiotiea above mentioned
which hi» ina'tie* adroc'st and sir Patrick
Home advui'411 Ibr his hitfhucs intrest here re-
|»eat«feefig it iso i
iiatv rdaits oidy to
moti tnlvreprtseiiliog liu
sHtionet i^OfQllltttod by
the n<^'t>f»'**'fi
he act of indern-
. in the <'Ountrty
.♦;.>,,^ofth*, j.,
it as to wK;
._ ninity that i .. . „,
t:r * nd v*-»ud(cl' «in v«l
f only to ihcr i 4>nM In
which docs no< relaite to iht' puLlict
of the kingdonie nor to privat
ilarly can never be extend it
ujd ioverfing of the kin|^
^monty which tail never be comprehended
' r aay a^ of indirnaoity Aud alb«^ tht act
|»v
tlivr olhcr
guveriuent
fsrymes n
to ilti> IP
of indemnity would free the defenders from
the puninhment juBtly due by tho law to such
gross crymes and tnaWersationes as hes beeti
committed by them preceediug tl»e act of in-
demnity as 'truly it can not for the reasons
fora'd yet th^t can never liberal thern tirom res-
tit utione of the vat we and profcita which be-
h1n^'s to his ma\ie upon the account of right
wiiliont respect to thccrymeordi^ed of tnalver-
sa'one W her unto it was t|uadrnplyed liy th«
sM earle of Lauderdate his pro'rs auovenaified
that he adhered to his former alled^nccs and
duply and wber as it is alleadged that the kings
interest here arisses u|ton the nature of the
Vights and not upon the cryme The ^amein of
noe weight for the defenders havcing his maM ies
command tor coyning of the copper and the
tyme therof what ever quantiiie was c€»yned
the profits therof belong U* the defenders them-
sehes the officers of the Mint haveing ever been
in use to com pi for tlie same to the exchequer
And * reus potest alle^are conlraria* and so if
the king haf e ane interest in Ihe benefit of iha
copper coyn he hes granted the halfe y'ofto
the carle of Lauderdale and the rest of tlic de-
fenders have right to the other halfe as perqui*
siiofther offices and if the excess of coynnig:
was a cryme then it being extinct by the act of
indemnity anie interest arrysing upon a crytne
being in modum pent it is also extinct and by
the act of indemnity not only are all personr*
indemnified ^ quo aid veodictam puhlicam^ but
sIao * quo nd vendictam privatum^ which takes '
off all damnadge and interest And when ane
cryme is abolished by ane act of indemnity no
intrest arrysing therupoa as atie tfiect of the
cryme can suhsiat otiierwayes acts of indem*
nity would prove a seed of plees ami tlier can
not he a more full one then that Im, vi r.
siventie nyn And farder repeited and alletlged
that the eartc of L;tuderda|je hes this geuerall
drjenci' that as general! of the Mint he if not
lyahle and crated to be heard therupon now or
llijii \\ niiiv t»f n>^*>rved to hitu tu l*e heard
v\ of the cause Wbtlkol*
hi II made and propoitedfor
the s'd dele'rs renly dwly triply and quadruplj
a'mi'Utioned made iherto witli the fors*d sum-
mund^ Heing all at tenth read tieard seen and
consideretl he tlie saids lonU and they iherwith
being weill and ry|dy advvsed The sMs lords
repelled the fors^d \ir&v allerfgeauce Scarinjr that
the profit of the copper coyne i« a perquisite of
lilt! deflendeii» ofBi*e And als repelledthe tbrs'd
v^alleadgant i' ' ' t^ uiera'ones
rid thatth< Is ua far*
■ti lathe iin...,M*i../ ._i,;i._..^._.i ^^ the war-
md the malver^atione in relatione to the
;j, -, .„ue And lykcwayi^ repelled the third aU
Icadgance founded ooe Ihi* act of indemnity and
Hand that the same can not lecure the cTefen*
ders from being lyable in reslitutione of the
value of the eop(»er coyne more nor was con*
taincd in the warrands AntI aiimitted the s'd ttrtl
article of the lylicll ancnt the copper coyned to
the s'd nerst*%^4?rs prtdMtJone a&d for pfoveint^
therof the s*ihi lords ftitigQtd to the s'd m
34 CHARLES II. Proceedings against the Earl of Lauderdak [SOf
holds lliat since the copj)er was im[iortGd fiy tlie
officers of the Mhit and the king hy the sot of
indemnity havein^ pardoned the cryine albcil
in respect of tlie itnpressione tlie iiiony belon^r
to the king Yet it must be with deductione of
the value of the copper and workmanship for^
the cry me beiop pardoned the law makes noe
distinctione whither the acquisitione was bona
or maktfide cspeciallie wher the species is re-
diiceable to the first mass and the defe'rs to hare
allowance of expenss of the workmanship be-
cause the work was profitable to the king
sceng the extrinsick value of the ooppfr
coyned is near double the extrinsick Talae
fl07]
Geor^ M'Kenzie his ma' ties advocat and sir
Patrick Home advocat to have letters direct at
Jiis instance for sumonding of such witnesses
and probatione and als to produce such writts
rights reasones and documents as he had or
would use for proveing therof against the sM
day with certifica'one c. Tlierafter it was far-
der alleadged by the s'd defe'rs pro^rs above
damed that the defender can Aot oe lyable fot*
the profits of the copper coyn hes been possest
by the officers of tlie Mint as a perf|insite of
ther office wh'ich iminemoriall possessione niost
secure ths defenders these profeits being *■ bona
' fide precepti fructus et consumpti' and ther
was never any count made of the copper coyne
9o Esto the profits of the copper coyn wliich
exceed the warrands should belong to* the king
yet the defenders can not lose the copper which
was coyned nor the workmanship therof ther
l)eing onlie ane access as to the quantity in the
ordinary administra'one of aiie office ami if
they should not have allowance of the copper
and workmanship it would be a confiscalione
arrysing upon a delinnucncie against which
the*^ defenders issccunxl by the act of indem-
nity To which it was rcplycd bethesM .sir
George M'Kcnzie his ma'ties advocat and sir
Patrick Home advocat fur his liighncs interest
that ther is no law or custoine allowing copper
coyne to the officers of the Mint as perquisit
due to ther office ffarder then what is alloweil
by warrand to be coyned and the proffeits
arrysiog therby cannot be s'd to be * fructus
' bona tide percepti ct consumpti' for sceng
they knew that ther was only six thousand
stone allowed to be coyned by tlie war«ands
They ware iu petsimo dolo to coyne more then
was allowed and the defenders cannot have al-
lowance for the value of the copper or expenss
of the workmanship that was coyned more then
was contained in the warrands For what was
coyned more being unwarrantablie coyned
it most belong to the king '• quia versabaulur
' in re licita' and tliey wex \n pcssimajide being
the kings servants and intrusted by him to ap-
ply the kings jrons and impressions to anie
more copper then was allowed by the warrands
And the act of indemnity as it does not secure
the dnfcndcrs from the cryme for the reastmes
above mentionat farr less from the restitutioiie
of the valwe of the copper that was coyned
more then was allowetl by the warrands and
that without deduc'one of any thing upon the
£ccnunt of the price of the copper or cxfiensses
of the workmanship which they aught justly to
louse l>cing in re licita And oppones the former
interloqtiitor wherin this is allready decided
Whcriiiilo it was duplj'ed by the s'd defenders
pr'ors above named that the forsM alledgeance
stands relevant notwithstanding of theanss'r for
iitiCt'iJicatinne (sic orig.) w her I he species is re-
duceable to the former matter The right of the
species l)c1ongs to him who had right U» tlip mat-
mnd albeit in this caice copjier money he re-
ducable to its first mass yet in respect of the
publict interest it must rcmaine alse currant
■ipn»w but th« commOo ground of law still
coy
thereof Ly keas the defenders imploded many
other peopfe in tlie work about fourtie or ther-
by besyds the servants in the Mintliouse It
was triplyed be his ma'ties advocat and sir
Patrick Home advocats for his highness inte-'
rest that the king does not pretend right to the
copi>er that was coyned more than was allow-i'
ed by the warrands by vertue of the specifica-
tioue but by vertoe of accesslone That the
copper which is the matter should follow Ihe
king's stampt and impressione as being the
more precious and is that which makes the
coyne to pass at such ane raite worth and
value As in the case of a pictur dmwn upon
auf^ wy' mans cloath ana table the cloath
and table will alwayes follow the pictur as the
more precious * Libro secundo de institotiooe
^ de acoiiirenda renim domini,' pa^therty
four ' Si quis in aliena tabula pinxent' Ana
the defenders can not have allowance for the
mass of the copper seeng they ware in < pessima
* fide ' to coyn more then was allowcu by the
warrands aud what ever right hfVe been pre-
tended if the copper had be^n brought if- ny •
stranger and tliat the officers of the Miot
had adhibit the kings &tanipt or impressione to
it without the owners knowledge that in that
raice the owners might have craved allowonoe
from the mass of the copper ]>ut that can
never be pretended in this case wher the cop-
per was broght in and coyned by the oflBoeni
of the Mint themselves And seeng that they
knew ther was noe more alloweil to be coyneil
but the six thousand stone so that they wil-
lingly and witingly have coyned more then
was contained in the warrands allowed by the
law They ought to have noe allowance for
workmanship upon the same ground as abo
they being the kings servants aud haveingml-
laries they ought to have noe allowance for
workmanship And if it ware otherwayes smi-
tained it would be a way to incurradge the
officers of the Mint in tyme comeing to com-
mitt the greatest abuiscs imaginable for they
would alwayes coyn more then w as altowed
by warrand if they know they ware to hare
ailowanri; for the value of what was coyned*
more then was allowed and thor dwes of coyn-
adge albeit therader should be discovered so
they should lose nothing but I he profits tb|rtr
they designe to get to tljemselvc»s And ttatt
war to incurradge the abuises and malrerM-
tioues io relatione to tlie Mint instead of mpU
tmi ot furs, for Official M
prc^sinf; anil punl«i1iinu; 0»« same wtul sveug'
* nemo (lehet lucrari ex suo dolo * evisu iu cvisw
htiwixt privut punier mu't'b tc^s tri mnttters re-
Iaiikil; to ilie Mint Whfniiitoit wus quarlrii-
iifycU lie tli« <lf'fetHlcr» iiro'rs u'riamt^^l (itilli»*r-
^^Ij- la their furmer aflcfigcance and liupl^)
^hl tftey tire not here in llie cuse of acecs*
^Sone And that instance of ane picture to
Dvhich the mauer did ndc was a sii»{^«-ultur ili
<0tfione ii)<:im»ef|iientiiill to other Inwh and the
tDurid of it was the excetlencie of the pttiurr
d It doei4 nnt (jiio ttd that wilh I he present
cnse To which it was (pTailriijilyed Uy hiis
Ttm'ties advocut and sir PatiicU iloine fur his
liig;tmes« ititrestt That this ivns rk'iire in the
Cftse of accesHiooe which hy the U\w was <inp
<it tlie Wftye« of aff|iiifm^ tlie rijjfhl and doini-
niun of a thioir and ther wti% uoe sin^uhirety in
the c»se instaiiceil It being a t>rrtaine pnnci'
pie in bw iind the opptiitoti of all the tawern
lh i i rhatsnl>je«H VVIiilk aU
1«mI I and pioponed lor ihc
Sttiiis. lir jt ii«i' 1^ rr|M\ IS duplyes tripJyos <jitHd-
ruplyes urul fpniititjilyrsalHt^eni^nlioncil ii»adc
therto iieint^ all at Itnth heard rtil setn artd
roniiidered l>e tfie saidii lord^i and they hcincf
therwiih weill and ryply advysed Tlic splits
lords sustained thf tbrMiid alhMi«^eance a?) to ilie
dedur.tiant! of the pryce ot the copper hnj^lit
«the defenders (more nor the six tho(i!>iantl
lie alh)ii«d) pre«*f*edintj the act of indemnity
Tl*ey afffAi^eH conrle^ceiidino np4in ami prove-
in(f the i)iiantitie4'of the tinid copper and the
pryce they boiig^ht the same at betwixt and a
eertaine day now by gnuo ^V hieh the snids lords
ij^ned to the saids defenders and thcr pro'rs
j>vc' named tor that effect with certitiea'ne c.
eri-eiyt; to his majpstic^i ad vocal to be beard
a^in«i ihe proljatione but refu'awl to allow
the delenders the pryce of any eopfier coyncd
l>y them fii nee tlvc act of indenuuiy nnilal^e
tefuiscd to allow any expenss of woiktuanghip
tinne by the officers of the Mint or scnanU
ivnder tliem in the Mintliotiive But deelaire^l
if any thinj^ Ije dwe and resting to cTtrinsjck
workemeii upon that accomit the V uill a I low
tli« wime out of the fi Hit end of tfie !»anmi^ to
be rtjoovered fffmi the defenders Thci'aiier
ilie said J»ir r > Ken/.rc his ma^tleH ad-
Tocmt and si Home advocat for hia
in;>' ' V insiitleil upon the
«• I ad lybell viz. for
pajfi iri'^tii ujr ior*<;n*i N^mnir of t^refve !4hillin|Tf
Kr.^is tor each imce of hulhonL' p*«y<^l m be the
iiP,*^, ^..^^c ^'^ily the years ahnxf nvc-iitionat
t^ lite Koume of three hnndreil and
f?l, tlinii^nnil TwuiitiJ S.4.t> mOUy
Al ud carle
of * ■ I , . n^iTirsl
that tht the i\iini I
ble i'm .<' rinr! hi
and tb' .* tor the btilhone
4mt tb^ ih*"»ciof parlin-
^1/' rrr^rvof the Mini
^■i^ft mri.t* I M Kione from the
^^^■itMmd ^i \>i Mid holdi
rompt to tlie exchequer for the stine And ibe
kinflf hes taken particuUar securely fnnn lb*»
rnasitwr of the .^Imt as apnear>i by a btmd pti>-
dticed granted be sir John Falconer and ane
oilier be bin Halber wherin t he v linviv found
cationuc And not only did sjir*fohn Falconer
as mnstcr of the i^lint make compt bnmeHy to
er Wherunlq
zie \uK ma*ties ailfncal and sir Patrick llomiii
jntvot:i» i'"f liiH bit^iies inieii'Mt that by Iho
act (.1 lit in the year Im. vie. sixtie
nynr 4 the Imllioue U being lb erhy
left in the optione of the marelinnts importers
of the g-oodt* ihenn metil toned either to pay
bidlionc in specie or to puv money furlhesaui«.
at the raite of twelve stnllin^ per ounce And
the mony «o payed i^ appointed to be delivered
lu theg^cneratlsHnd master of the Mint by tb©
taek«inien and coll cvc tors Ami the gcnenith
and master arc oblciijed to import the ^iocU "»r
btillion Ibeniselves and to royn the same so
llirit it IS eltar by that act that the generaUs ^h
wrill as tlie master is eomptablc for the tvveho
shillini;' payed in for every ounce of bullions
and not onfy is ibi^ MurraU lyable in this pur-
ticullar ca^e ai» i tfiincr^ relaitinsf to
t her own office ; ils, but are lyable *»
soiidum for all the abuses and m:tlver!tiation('^
cnmniitted by any other officers of the Mmt
And that for th^e reawnis Vrlmv They or*
tyable tirtutc officii by vcrtue of the office ai
gpcnemUs who i8 bis ma*tie!i suprctim ofticcrsi
in the Mint especially scen^' that by thcr i^'ifc
they have jiower to comptndl and redarg;weaU
other otficers uf the Mint And with fiue Am]d«
po^vtr to bold courts and to punish cl*»litupiLni»
>vhicb clearly evinces that not only the gene-
ndh lies tiic snpreiim power and superintend-
ence over all the rest ot the otficer* ot the Mint
hut also ought to have a particultar rare atn|
see r\ery^ tnan jvetforme his otlice faitldully
and in case they doe not to punish them ae.-
cordiui^y and to represent to his ma' lie if
any of them malvenie in tlier office that they
may be receaved (sic.) and others more faith-
fulfaud diUi^nnit put in ther place And yet
notwithstanding the g'eneralls did not only jn'**ss-
ly maUertie in ilnui^^ Maitinjg;: to tlier own office
but \^ I uiesan<l suniii i ' t
insrr ("crsof theMiii
their fttuH- niminuiy ami iu Uiairy ^^iiirni-
lars ware shairer*; wtUi them in thcr urtjtigt
prutit^J. And first to the r'-' ^' '*
his nia'tte allowed only s
lie coyned j'» **vn rfn..u i . :
was neir I «o
ih;ii y' was yned
• nt a wamind contrar to v dis-
.^'-•ing the same* under lh»+- :iji*li-
nteniA by which the coUJdr«-y wait ahiiii»ed
with co|*{>e.r many Thcr being mlmost ntm
Tminy left in the countrey but t^opjier inooy
which waK ane inlinit pn-jmliceto the cuotrey
9nd mine of tj-ade For the tyme <'
t»hoold havtt tp«!Ut iu coyatog of b
I*
■1
«1I]
34 Ch ARLES It. Pmeeimgi $gam9t the Earl 0/ LauitrMe [912
bis mastics lue aDd the uie of ihe narcbants
was for many years spent only in coyning of
copper mouy for tber own advantadge off
whiirli the ^eneralls did take the greatest part
of the benefit to themselves Nixt wheras his
lua'tie appointed tiveiKic thousand marks aa a
stock for buving oi' bullioBe which might liave
been coyncd and changed twenty tymes in a
year and which the generalb ahoukl have seen
done yet ther was noe bullion bought with
that stock of mony Albeit the genmlls and
master did most uniustJy exact the a'rcot of
thetwentiethonsantf manu from his ma'tie as
if the stock had been imployed yearly for buy-
ing of bullion As also albeit by the act of
pariiament the twelve shilling payed in by the
mar^liants in place of every ounce of buflione
should have been emplotred for buying of bul-
lion Yet notwithstanding the generall and
master did not imploy it for buying of bullion
but applyed it to ther t>wn pry val use And
albeit by the laws of tliia kmgdom the mony is
appointed to be of equaU weight and finuess
with the mony of England yet notwithstand- '
luf; it hade been minti^ forrWow the finness
of the standart And albeit the officers of the
BUnt ware only allowed to work upon the re-
medies in case of casnalety Yet they have
alwa^es industriously wrought upon the re-
medies so that the Scots mony is less then
the intended standart plat above two graines As
also albeit (sic.) be contrary to law and the na-
ture of all MinU that any money ahoukl be
coyned witliout esser Yet notwithstanding
the greatest part of the money ooyned in this
kingdome undf r the pretence of diiselllicads
awips and scraps hes been ooyned without any
pott esse^ which is the occasion that tber is so
much baise mony in thekingdome As also albeit
his ma'tie for securety of the weight of the mony
coyncl iu Uiis kingdomc had sent down a pyle
of weights from EneUnd Yet notwitbsUndmg
the officers of the ilfiiitmade use of the deun of
Guilds weights for recoaving in of bullione
from the marcliants which is four in the hun-
dred heavier then the Scots pyle of wdg^ts by
which they troned the peaces so that they
made use of different and false weights in re-
Ceavinc^io with ane weight and eiveing out with
ane other And the lord l^Iaitland ane of the
generalls albeit he receavcfl the EngUah pyle
at London by warrand from the king Yet he
would never suffor it to be made use of in the
Mint but one the contrary when the Soots
pyle was reduced to the true English pyle of
weight he caused transforme them and bring
tlieni up to the dean of Guilds weights and
continwed in makeiug use of these weights be-
fore the year liii. vi c. iMghtie two that the
officers of the Mint came to be challenged for
ther nialveraatione As also albeit the pnifit of
the exaltatione mony did belong to the king
yet the officers of the Mint dul Uke it lo them-
selves As also albeit ther was a conaiderable
quantitie of bullion yearly lying by the offi-
Ms of the Wnt uncoyoed the profeit therof
-^"1-' iiare bekM|g«| to the kiog yet not-
withstandingr they applyed it to tlictowD privat
use And albeit by toe law the melling down
of the current mony of the kimcdouie is dii-
charged under very aevefe peoattiea yet not-*:
withstanding tlie officers of the Blint did mete
down many thousand of rezand legdollen and
doucatdouns to the {j^reat prejudice of the king-
dome and mine of trade so that it is almost n
wonder ther should be any mony in the king-'
dome AU which abuisea and malverantianci
the generalls of the Mint by vertne of tber of-
ficeis should have looked to and rectified and
punished the transgreason which tbey were an
far from doemg that almost in all the fim'd
particullars tliey ware sharers with the afieen
oftlieMintthemselveB in the uiyuai gain end
profite that did aryae by these ahniaea and oonl-
versationes And to all these groMabuiaae and
malversationee the carle of Lauderdale aopec*
aded the unjust acting of new payment et the
same years salhurie and brvbttv in taking n
hundred pound to get sir John Iwoncr'a nigml
and exorbitant accompts from theexchec|tter ha
being then ane officer of state his ma'tiea the-
saurer deput and ane of the commias'n of the
thesaurie And oppression in extorting bandi
from the other officers of the Mint for camale*
tyes that did no wayes belonp^ unto him hot It
his ma'tie and did so far abuise hia ma'tiea an«
thoretv for his unjust ends as that he Ifaieal*
ned them that if thev woukl not yeild to hii
desyre that he would persew them hofor hit
ma'ties privy connsill of ilesigne to palUat and
cover his extortione under the pretence of ahad*
dow of law And therfor the generalls not onl^
for the acts and deeds of nMlvemtione dene
by themselves in rdatione to ther onn nffica
but also for neglect to see the other offiooM aff
the Mbt doe ther office as is dear from the
common Law Digest tit de administratione ler.
ad civitat. pertinent, lege nynth par. ei^
item rescripserunt curatoreni etiam noauaa
collegss tcnere si intervenire et prohibere dwa
potuit 2 . They wer oblidged ex colitractu vis. eK
mandalo which in law is defined t6 be oon*
tractiis in quo ipsius bnn& fide negotium aliqoid
alteri serendum comittit alter vero gratuito ant*
cript' butif the mandator have allowance eir
sallane for his paines then tenetur ad ezactiai*
mam dilligentiam et dc levisima culpn aa it
clear lege therteenth Cod. mandati libra <
tit. thretic fyf^h a procuratore dolum et
culpam non etiam improvisum casum
tandum esse juris authoritate manifeste denlniw
atur And Cicero in his oratione pro MimAv
in privatis rebus in quibus rem mandalam aon.
mmlo malitiosius gesserit sui queatus ant i
modi causa verum etiam uegligentius
sum mum dedecus quid enim recipis ma
si aut ad commoduni conversnrus ant 1
urus es cur mihi te offers ac meis coma
officio simulate -offers et obstas In
charges sayes he if he that hes undertakan-A '
oommission or mandat does not only malitiniMly: ^
cary himselffor executs the commission far hi^ *
own gaine and profeit, but also does il nqgin '
.gcctlyitjjsagreatdisi^^cetohim ForwhgF'didI-'
913}
9ni Gihert^for Official Malversatiom*
A. D. l6S2*
[814
be receive a mandat if be wm only to make
Uf« of it lo bb own piivRt g^aine ami tie|9r}ect or
why ili<l be offer liiriiM«lfe or obttriict bis c«)ii*
fUtuejiU {^aineor (iroIHe by [itakiii^ » shew to
4oaliilft service when in the momc-iyme lie was
4iieiii|(r alt fur 4us own pmtite and game wbii'h
*J«e« vary lively represent ifits case The ge*
nertik un«ier the (iretence of serveing the kin^
and iierlormiiijif ilier officer as they ware ob-
leiilf^ml by ther coraroissioae either eon verted
Ihe promts arysing- by the Mint to ther uwu use
w oilierwayeji iiegle<:ted lo ste the other ofBcers
at' tbe Mint doe ther ductie in ther rei£*ive
fiffioea acconjin^ to the power and trust com-
milted to the g'enerallji hy ther giW As also
Ibey are lyable ex eontracuj locaiionis et con-
duciioni« wbidi in law is tteiioed to be con-
Iracttis botne^fidei <]iio prt^tatur iLfiis rni pt
opera ceita merceiti; catiMiitita Sit ihat the
cofiduGtur who ^'lea allowance and sallarie lor
his paiDC and work is lynhle ad eitacUssiinani
diligeQtJaiii as is ck-ar t'roni lege vigresimo
octavo Cod. de looat. et conduct. I ibro i|uiirto
tilulo S€JtBifes»tmo quinio in jmlicio turn bicati
i|uam conituctj ilolum et cnstodiam non eimm
Ciaum cui resisti non porcKt vernre funstnt so
that both in tlie casie of a mandator or conductor
ojieratonim They are lyabJe for eicact difli-
genee in so farr as the law oidy excepts casits
S^nuitos. Tertio as they are lyoble ex otticio
aJid ex contractu so lykewayes tliey are lynbte
en quaiiii cenlnu'tu as nejfotiorum uestoiWtbty
Wing'iDtrusttd by bis mu'lip m illi the* manadt^-
mem of the Mint who by llu" bivt- arp i\iibfe lo
the exacte«t ddli^:citce lii.^tiiut. bbr<» tcrtif> par.
priino tituh» vij^euifno ocUio quo canu ail ex-
actiajniain qnivque dilitrentiatn cffm|iettaui' red >
deitf ralionem htrcsu^hcittaloiiMlifitfenHuni ;id-
hibcre qiualciu suis rebu*» adhibere solet s>l ruodo
alMfdiligenter (eo) co^nmodiu^ ndniinistruturns
etaci oegotin Which is clear in this case seen^
tbe kiD^ woyld have gotten fyve thousand in
iicotland who would have discharged ihb* office
more dilli;^eiiliy und faithfully then they hat^
dooe As also it ia clear fn»ui these titles' in the
lair de adioue exevcitoria et institoriu tbut
lb# eicercitor Navts the ina.%ter of the ship or the
Miter who is propo!»ed to he the nian{)d«^erand
overseen^ of any particuHar ertair viho are not
only lyMG Utr tlie exat'lesl diliigence hut are
)yaide in solidurn lege prim* id est dc exem^ilor*
action' par' tiuah librudeciino quarto titulo pnmo
fti plurtfs uavetn exeroient cum quoliln t eoriun
iaauhdmu agi poteat. Quarto ; they are lyabte
ex deheto vel ex miaai delicto vel ex lege Aquilia
irel in factum lor makeing up the toes and
pir^udice tliat any part b«?s sustaiiRnl through
ftoc otbeis de^MlIt as also wher thtr are many
iMitiea eOQCcriiod therein they are liabkiu so'-
fiduin aa is deare titulo eodem lege quinqna-
fresiniB prima par. in ttne cum plures trabem
aJicnam fiiraiuu isuaa sustiilerunt quain singu-
U 1mm wm pommA. imtii actio ne o nines teneii
4{daiiitis Kubtili ratiotui dici possit
cofum tetter i — uemuoein vcro tra-
•liasi As also thU is larder cleared in
tof ihiilwbcr many peraoaci are oou-
ctirring to the oomtoftting of a Ihift they aro
lyable in soliditm lege sexta digest arbor.
itirtum crrsaruro hi plures eandeiu ac arborein
surtum cecideriiit uuum singidos in scdiduni
agetwr as also they are I y Able ex crimine pe*
eulatns for abstractKig oi the pwblict numy
which ware the profits of the Mud hdongiog
t*i iht* king and converting the wune to thef
own privat use As also tbey are ly able ex cri-
mine de residiis by wtteriog the satne a^ pubtici
money and not im ploying^ the satne as they
ou^ht to have done Anil this is clear tykwayea
ill Uie case of spuUies and wnongous intromis-
sion t^^ wher the parties are not only lyable for
rv!»titutionc of the thing taken away but alsQ
an? all h able in soHdum To which il was du-»
plyed by the earle of Laoderdails pro*rs above
naineil that the kingbaTcingsecureil hituselTe
h\ lakeiiig cation from the master of the 5lint
ific genenill at most can be but lyable onl^y
subHidarJe al^cr the master is discnst and lliis
of Ihc bullion is coimtwl for the Exclietjuei*
And the counts lying bcfor them and wbal
ever the birds may doe to clear things <br the
ftitur it war hard to make the gmerall lyable
for bygaios To which it was triplyed by sir
Otforge i*l*kenzie his ma' ties ad vocal and sir
Patrick Home ailvocat lor his highnris intc*rtsl
that albeit the Exchequer hcs taken cauiiono
irom the master of the bullion for the kingst
ItLriltT securetie Yet that does not libemt ihe
general Is who are lykewuycs Ivable to the
king by the law and what'biilliou thi^y hav«
eo anted i\^r to the Exchequer shall be de<luccd
Which seci^nd article of the lybell ubove writ-
ten repeikd and insisted upon by liisma'tii-a
advocai alledtfeances proponetl for the s^<f *
earle of Lauderdale against the ^ainen repl|
duply and triply above written made iherf '
being all at leiitfi read heard seen and cona
dered be the s'ds lords and they l>eing tliei^
with Weill and ryply advised they repelled tli
fors'd alledgcance prOponed for the earle of Lau«
dti-dale gcnerall of the Mint in respect of tb
reply and triidy made therto and fiand tha
Ihe'generoll ot the Mint is com|)tjtbl lo iL'
king for the bullion and the proteiUi arrysin
iberfrae reserring to the gene rail his relie
against the master and other otiicens of thr
Mint as accords of the law And arliuiti
the fora'd second article of the lybdl
the perse wers probalione and for provein
thereof the sd's lords assigned to the safi
sir Gwir^v Sl*kf0zie his majesties advocati
sir Patrick Home advocat tor bis majesties m*
lerest a oertaiiie day now by gatne with crrtilU
calkme Tberafter the said air OeoryeM*kenzi^
his ma'ties advocat repeated thetlnnl artiiie ufj
the foi-sM lybell viz. That ther being allow edl
by the king to the general I and other otficerij
of the Mint Ihe a'reut of twentir lhousai*|l
marks yearly as a stock to hate h«'cri imployeil
by tliemtbr the buying of bullioni? and ct»inf I
tug the same and whicTi might have been cx*1
changed in gold and mony tw^tie Ivtues in a4
year Aiid yel they h^re not imployed tbtl
atock for llie ttia atiwe nfmioiiifd iiid dcclanA
tl5]
34 CHARLES ir Proceedings against the EaHof LMuJtrdah
bis ma^lies advoeat instiiteff for ]>ayiueiit of the
fi>rsM soiUDe of ane liundretl and ei^btic ll»oti-
saud ttud six hundred (lounds as the benefit that
liiith or woidd have arisen from the ct>vniii£f
atid exchange of tlie foi-s'd stock the years
*buv€ mentioned Asptinst which i t was ailed g'ed
Vy tile s'd enrle of Lutiderdale his pror's almrc*
named that the master of the [Vliot bein^ pnr-
ttcullnrly eoriecrned in thearticlc tliey must in-
timal Ihe i*ei-suite to him And alledged thai
ilier was nue act of parUa't that makes the
defender U able to i* implo\ein^ the slock of
Iwentie thousand marks la mainer for^aid nnd
tliereceaviugfaf the aVeut can not make him
lyable tor twentie thousand marks rcmanes i
aiviaye:! in tlie Mint as a stock -for bnv-
iiag of bidhoDe in cnsc of intcrnptione of
trad and for defraying^ the mexJcat cliai lt*^ of
the Alint And ndieras the &umm(>nd!j hears that
the huUione to be bojiglit with the forsaid stock
Dfi^ht have been coy ned and exchanged in qfohl
and mony tvventie tymes iu the year Itis a
great mistake it not being pohsible to iloe the
same sfix tyiuen in the ^ear and the aVent of
the twentie thou^tiind marks n ould not have ijc-
frayed the expen»cii of importing: the bnllione
Ihe exchano-e in some vc ars bein|>f my hijrh as it
did exceed ihea'rent oV the s'd soume VVlier.
unto it was replied be the s>'d sir Otniriie
B1*kenzie his majcii ties advocatand sir I*ntnck
Home advocat for his hit^rlmi^s interest lliHt \m
iTiQJestie out of liis princly care for the j^nod
of hi*i subjci'ts incicss ofiiKiny in the kiiijr*
dome and for advancing: hisownrcvenew by ll»e
Mint having appointed tw enlie thousand marks
IU! a stock yearly to bt^ imployed for buyin^j;- of
bullionc to hcj coyned and 'exchanged*ti>r his
ma'ties nsc and accordin&^ly his maje^tie have-
ing- allowed to tl»em in ther accouDti^ the a'rent
of twentie ihoutiand marks yearly They ware
in|ie^si(un lidr; to take atioxvaiice of the'a^rent
«f twentie thousand marks yearly and yet not
imjdoy it for hnymtj- of bulhono as wnsdes-
litvathy hiH majestie and y'lbr they aucjht to he
lyable' for that proieit mij^^bt Ijave arisen to bis
fiia'tie if that stock of mony bad been impk^yed
i'cnr the huyiny: of bidhtnio* uhich miyht have
been coyned and exehan^oti twentie tvmes in
a year tiK hes In u*e to be done in former fymes
And not only tbcr %vas alvvayes a stock of mony
in the Mint appointed for l»uying of buhione To
be coyned for bttj rnujesties use but parti-
cuLlurfy iu the year Im. \\ c* sLviie ane
ther is ane expreissuct of paHia'toppoiniinprthis
alock of mony to lie inipU>\ed in mainer fors'd
W hioh thin! article of the lyWll abore written re-
peated and itivLsted in alieadn^eanecs abo^e men-
tioned made aptin lit the wime and reply made
iberto being all at lert^h ved heard Si^cn and
cofisidtTctl be the baids loi'ds and they iherwitb
bein^ weill and ryply adv>»€d 'fhey befitr
uurV ordained the rompt Imoks relaltin«' to tlic
atock Hllo\%^d by his ma*tte for coynin;,'- of hid-
litinL" to hr^ jiroiluctd Ibrcleannif how (dten the
butbone that &hotdd have been boiiiiht with
ibe said i?lock of twr^ntie tlioitsaud merka bath
beeti coyned atid exchaQgcd in the year aud for
that enecl the said lords assigtied to the sH
sir Georjjc !Vrkena:ie his majesi!^^ "^1 'f ■
sir Patrick Honieadvocatfor b
rest a certaineday now byg^ain hn ^ . . *.. ,4^
count hooL^ relaiting- to the stt>ek and \
his mn'lit**; ndvocai letters of incident dilti
I in' I'et.fU'erie y \»f Tvith oertifii^tione c,
«!itr the said' sir George M'^kenzie hi* i
tits adiOL-at and sir Patrick Home advocat
bis hiohites interest re|>eated the R»urth i
of ihcsuidlyhleviz, (hat whereas the mony (
tbiJ* kin'^doM*ie is onlaiuetito be of ecjunll tiutia
1% it b that of England vet it is t*vo
then the sinudert of J^^ngbmd ther hein
indinted plate of silver cuueil in the two j
uhtrof ane bal/e lyes in Uie Tour of f ji
unit the other was s»ent donu hither and it I
hard to be exiict in ohservin|j tlie uniiie tiDnwm
in the ctjyne ther wus two grains of ren
allowed upon the mice of silver And the i)e
♦coders ha vein g- allwayci coytnHi at two ^rpii
less of every ounce and ih'erby puri»o»*iy iid
bftslcfl the itandel-t anil these two graia
amonutinLi: to twelve slitllinj; ujion the pouo
of silver they auu^ht not to have appl\ed ill
same to ther own use but mu^t he coinptah'
for tlte same to the king And in En'jldiid I'
remeiliei* doe belong to the kini^ and decUtn
bis n>a*( its ad IOC at for his hiy^hnes iiitrest i
sisled forpaynieutof the fors*d souine of an
thousand nyn bmidrcib and t^^entie (KMuidl
yearly the years above mentjoiied of the pr
arrysmti' by the diference of the coynefr
the fimus of the indented standert plate wid
the bcoetit of the reniedies bcinqf Iwdve \
liufj upon the pound of silver extending
years lylwll to the sonme of twentie four
sand pounds A ^ninst which it was alW^
the s'd earle of Lauderdale his pror*a
named that the master of the ftliat is
concerned in this article and he is not c*othp
in;^ IJdo That the two grains in every unce I
lowetl to the defender as a rem<'die The bin_
tdvocut cannot subsume agTiiust him if he hai
not exceeded the allowance 3tio That tb^
could bc^ noe dam nadg'e sn5^tained against Ih
c^rle of Lauderdale upon the forsM accoufl
that the money is not of suftitient fynnes lie
cans ther heuij^ a com is*, ion ti ranted hy th
kiOi,^ in aiino Im, vi c. sivenlie tmirfor trymg i
tlie coy ne It was found by the pers*mes coifiil
siond ther report tliat the silver coyue of l'
kin^dome was above alcvea pennic fynei _
so above the stunilart as the commissioue and
rejKjrt produced bears which report was ap-^
proven hy the kingf Ami iht rfor the deloQ
au^ht lobe assrdzied as to what uaseoync
beibr that tyme Lykeas ther bemj^: try all take
by tfie jaite commlssione the coyu %%aB fou0
in fynnCbS to be abf»ve the standert Whertmiot
was re]»lLe<l by his in a Hies advocat aiMl
Patrick Borne adviicat for his htg^hnes iiit<
that (he earle of J^auderdale and lord Maitla
peiieralls of the mint areaNe much concen
i*iid umvfX Ik? lyable to the kiny: for this and \
other articles' of the lybell as the maister <
other ofiicers oftbeBlint l^o Albeit lh«fr was lw#
i
•17]
and olhtr$,for (Official Mahtrtalioni.
A.D. 1682.
[SI
g^rnina of i*eraei!je albwed in caise of casii-
Acetic in caise tlie Jinness fell to lie over or
wn»l(*r yet liiul wasiio wanami for ibeofBfei's
Df ibe Mint to coyn coustuntly upon the reme-
dies as they (ltd )mt wtiatt^vtr be tbe rem«f*
•lies of finni-fis wbJtIier casual! or industriously
done yet the Kaitiea alwayes: belongs to the
kingr *8to As to tlie dischargee ^rarite^l be the
kiny as to the tlniiess of the coyn from tbe year
1 m, vi c. sixtie four to the year 1 in. ri c. siveolie
thrive It cannot be extended to tbe suh^iiijuent
years ntitlier aiiijht it to hberat the otiicert* of
Oie Mint even for these \^!^t% lueolioned in lUe
discharge because the Iryall u|Kni which it pro-
ceerled was aliojfether insuBitieut and by q
meer inisftake in .swe far as it is posiiivly of-
fered to be proven that tbe tryall was after this
iniiincr viz. At e^ery luelling ther bein^'' a
|)eaee of mony coyned cult in i^vo peiccs wiier-
nl'aneof tbe [leaces bein£( but [(jntj in the pjpe
v^ben the Irjall vviis made .some ol ttiese peaces
being mebed iJoun to§felher they ware fun ml of
milfitient fynnes Bnl ibe faltacie biy in ibise
that (a srnidl mettin^^ tbey wonid a coyoed a
far greater quantitie may be ten or tii^elte
Blonc vvlntdi was not ueer so fyn asi tbe staodert)
uiid of this tbey put n<»e more in tbe pype hut
tlitf lintfirf of tbe hM^x coyned of that melting
80 that albeit t her was a lar i"^ reciter ijtmnlitie of
bafiic luonyjoyneil then fyne mony Yet ther
wjis a bke pe.icea of both pnl in the pipe so
llntt wlien tbe outter fyn and ibe under tyn^
fieai'cs came lo Ije melted doun lo|»;elher m a
Jij>net it proveil in he of sinndert fynnes so that
nt tbttt tryal ibe b^net found to be finuer.hen
if lot st;indart wliieh h not to be inmgiued it
would have been if tber had hucn some cheat
in it Jor if* tbe mony coyned ware ahvayes
tinner then the staiuk'rt it wold rprtaiuly de-
-Btroyed tlie oflicers of ihe Mint in plnce of
tiiakein|:r any piine But the cheat was in
ttiis that albeit tber was the lykc peaces
putt in i)ie ]»ip« of tbe coy nadge of counter
fin nest silver and the coynad^e of the be.st
.inony which beinjj melted to^ihcr will be
Riire t'» make tbe linnet of sulFitieni fynnes yet
Iher being- a far greater quantitie coyned at tlie
inettiog'of the baise mony thin at tbe imjIlin^K
tjf the utter fmncs silver \u evident that al-
beit the liy^iiet made up of tbe peace in tbe pyx
was of standert fynne* yet the g^reatest part
€>f the niuuy of Scotland niiybt have been haise
mony As de facto it is so in etfect u|>ou tbe
maitter tbis was no trynll at all and tor the far*
der evincing of this it be** been trjed that al-
lieil some mark ]»eices bei of snfiitient fynnes
yet wher three nr four hundred of them is taken
togiiber and lOebed doun in a It^niet it would he
fomid to be very lar short" of tlie sundert as to
the lioness Anil hjj for evidence of ibe insuf-
litirncie of Ibts try all ther was no tryall at all
t«ken as to tbe weii^bt of the mony w"hicH w as
als»' inaleriall a« the fun»es» Wbitk the fourth
aiti« h' iilttir* lybell repeated and insisted upon
nl . made at^'ainst tbe same and reply
«J" ^ ncd with tlie tors^d exoneraWepro-
4tic4:d bciD^ all atteuUi red beard tieen and coti-
«idered be the sMs lords They being therwitli
Weill nod ryply advyscd they in respect of thfi
exoneratione produeed assolzied tbe delenden
as to tbe years preceduig llie s'd cxoneratio
granted by bis ma* tie in anno Im. vi.c. siven^
lie four Tlierafter his majesties advocai and s
Patrick Home advocat for bis bit^hnes^i intr
inmsted for tbe profits aboire lybelleil arrysing
by the difftrence of the coyne from tiie bnne
of tbe mdented standert plate witb the beiietiii
of tbe remedies beini^ twelve shilling upon thi
[K)und of silver yearly tiince tbe year Un* vi c J
sivtntiefour And u'lFrrcd to prove timt the
motiv was coyned con 4»lantiy upon tbe rem edic
As to which tbe s'd earle of LauJerdalls pro')
above named allediired tbe master was polf
lyahle and took instruments in the clerks 1iaa((
u[iou biii inlimalione of this persuite to tbes*d
f»ir John Falconer master present at tbe bur:
was lyahle to releiTe the i;-enerall of the Mint Tdi
wliich it was aos^red be tbe sM sir John Fal-
coner tiiat be dcclaii-es he dedyne^ to dcfeml in
this cause so fiirr as the king is concerned and
desyres w bat be now prapones roay be receaved
as a representa'one and not as tfefeoce in the
cause except t^uoud his releifl* And as to ths
copper cQynetl in the lii-st jumey berepreftents
that be is not ly^ble because he was then bis
ffather's. servant and compted lo him And as to
the second copper jurnay what he did thereici
was in obcHJience to the gencritll under whose
jnrisdictione he was and that he reclamed
scver^U tyniesand repeats his depositjODe token
befor the commissi one as to Ibih pint And as
to the a^rent of Iwentie thousand marks he
ou^ht to be free of tbe a'rent of the half y*of
for w hich he is only lyabk' l>ecans he bad the
mony in readines and itnployed it in buying of
bullion as appears by bis counts And if it was
not mad use ot in coynadij^e it vvas because they
had so much bullion broug'ht in to them by the
mercbantst that they could not make use therof
and bes counted for the wholl bullion frotn
Im. vi c. sivenlie i'y^^ te the year Im. vi c.
ej4>*hUi- Wliich compt ar befor the Exchequer-
ami propones this for his releiffmd fardcr rcpre-"
sents as to that article anent tbe tinnes of the
money and working uiJon tbe remedies tbal
ther beings noe injuuclioneof the ^uprem otticcr
viu. of the geneiall of the 3Iint to work con-
forinc to ihe indcuted btandert he is not lyahle
to relieve the gfenerall lie acknowleil^es thai
tber wi^ some coyned undei the staudert and
some above the standeit and nothing can
be sustained u[>un the aecompt of the remedies
becauis ther was als much coyned above tlu
remcdiea asabove[sie] ti»esame*ro which itwa
reply ed be sir George :Vl*lvenzie his ma^liess "
vocat and sir Patrick Home advocate for I
highness imerest that in so far as what is aU
ledijed by sir John Falconer as a detenco
against the king- It is answered that he ought
I vke weaves to be I y able for thecop[>er coyne for
the first copper jurney more then was jil lowed
by tbewarrands because he was coujunctma.^-
ter with hit father As also he did e\*crce the
o^ce of master at that iytne and uplifted the
ei9]
54 CHARLES IL Proeetiingi 0gahutthe EarUflMiArdMle [fflO
pfoKnts and was oUidged to know aM did kndm
that ther was more copper coyned then was
allowed by the warrands so that lie is lyable to
his ma'tie ahe weill as the generall and the
king' is not concerned q't compts and transac-
tioties was betwixt him and his lather and it
can not be made appear that ther was any part
ot' the twentie thousand marks imployed for
buying of bullinne they did imploy it for ooyn-
img ot copper for the matest part of that tyme
for ther eun use and the greatest part of which
they did coyneas buUione is now not allowed
for buUione so that they had aboundance of
tyme not only to coyn the bullione brought in
b? the n-irchands but also that bullion that
ahottld a been bought with the kings stodc
and i/hat the s'd sir John can clear by his ac-
oonnts baTe been payed to his maHie of the
bulUoLe shall be allowed as calhimnios to al-
ledge that ther was also much coyned abore
the standert as below the standert seeing it
will appear by the books of coy nadge And its
positifly offeretl to be proven that they alwayes
toyned upon Uie remedies and below the
standert Which alledgcance and reply being
all at tenth red heard seen and considered be
the s'ds lonls They bcfor ans'r allowed a
conjunct prolialiune for clearing how much hes
been coyiiod below the standert and how much
above the standert since the year Im. vi c.
aeventic four And for that eflect the saids lords
assigned to either parties pro'rs above nanied
a ceiiaine day now bygaine and ordained
either |Kirtie to have letters direct at ther in-
atance for summoading of such witness and
prubutione And sise to produce such writts
right;>> reasons' and documents as they had or
t\tjuid use in the said maitter against the said
day withcertifica'on &c. And also the s'ds
lords ordained the wairden and counter wair-
dens books to be produced and granted dilli-
genceto thesM sir Geor&fe M*Keuzie his ma'-
tics udvocat against the wairden and counter
wainltns tor that effect Thcrdfior his roa'ties
advo(»at and sir Palrik Home advocat for his
hiifliiivs interest repeated the fiftli article of the
tbfb'd Kuriunonds bearing that a con$dderable
pairt of the silver coyneof thiskingdome under
tbe pretence of silver called chisell heads
scraps and sweps hes been melted and printed
without any essey and so ought to he (»niis-
cat to the £ing8 use and decTaired his ma'ties
advocat insisted for payment of the fors'd soume
of nyn hundreth auft sixtie thousand pound
coyned without any essey and therby confiscat
in mainer alKive ly belled Against which article it
was represented and alledged by the said sir John
Falcnncr tluit it had been alwayesthe custome of
the Mint that the chisell heads and scraps which
ware a part uf the pots befor ware melted
againe in presence of the wairden And it was
thought that tlior was as great securitie in that
as if ther hade been any essey and when any
try all was demanded he was alwayes ready to
give the same And als it was alledged be the
sM earle of Lauderdale his pro*rs a£ive named
liMt w to the othOT officers of the Hial they
had ther oommissione from the king And tbo
generall could not invad any .other offiom
and seeing sir John Falconer who wae DMSter
withdraws from defending in the came And
informs against tbe earle of LaaderA&le the
earle can not be liable for his malversyalioMe
lyke as ther are two easeyesviz. the p^ eney,
which is only taken mr.privat knowledge
And ane otlier essey which conceoiea the puV
lict and which is taken after the peaces have
gotten the impressione and whenn ther cen-
not be follzior and this aiticle is hot small ex-
tending to ten stone or thefeby To which il
was replied be sir George Bi'kenMe and sic
Patrick Home advocat for his highnes istoresl
that the forsaid fytlh articie stands relevasl
notwihstanding of the ans'r because it bemg
clear by the Taw that no money, should be
coyned with essey if conlrar to the lewis it
be unwarrantable coyned it most belong to
the king And for the greater securitie that
therbenae money coyned without the cssaj
and that the cuntrey be not abuiaed with baiae
mony ther are two essey es used in the Mini
viz. the pott essey and the essey used ai the
printing and both cheeff essey es must be weed
and if any money be coyned without theae
esseysit must belong to the kiqg as keinff
coyned without essey And therfor the cliiseU
heads swips and scraps not being esseyed at
the pott essey whicn is the first eaaey ^ and
grvat securety against the coyning oi beise
mony was renielte<l they might hbve 'melted
als much alley with it as they pleised and which
is the great occasione uf so much baise mony
that hes been coyned in this kingdoiBe fiir
albeit it be preteodit that ther was ane essey
made thereof at the printing yet that can be
no securety because at that essey ther is oolv
a i>eace taken out of a whole trogh full whiee
may be is of ane other melting which of pufr
pose is made of standert finness yet the aMMl
part of all the rest of the pcices in tlie trogh
which is coyned of the chisellheads and swcfp-
which they doe not suffer the pott essey i^
the melting and so may be mixed with abe
much alley as the officers please, may be att
baise mony And it is not a small quantitie tb^
hes been coyned atler this mainer for it is ofp
fered to be proven that neir a third part of thft
mony coyned in Hcotiand these years by peel
hes been coyned without essey Whilk fiftb
article of tlie lybeil above written repeated siiil
insisted upon allcadgeances above mentioned
nuule for the sM master and generall and reply
aboYc specified made tlierto being all at lengtk
read heard seen and conndered be tbe s'de
lords they notwithstanding of the former aL*
ledgeances ffand the s'd fyflh article of ihe
lybdl relevant and admitted the same to iktm
persewcrsprobatioue And for proveing thcraf
assigpied to tbe said sir George Mckenzie hip
ma'ties advocat and sir Patrick Home advoeeft
for his higlmess Interest a certane day now b^
gaine and ordained his ma'ties advocat for )up
ma'ties interest to have letters direct at his i%i
atanoefor suBunondhig of nieh witntis «mI
m^dmtken.for Official Mnhenatluns. A, D. l6l|2# [I
IjrolNiiiooe anil alse lo (iroduce stVcli writts
rights reiifiotieB asxl ik^cuiaefils 9» h^ h^d or
woulij u&ti fur |irc»vin£f tbcreiif «gfnin'«t ibc s^d
iJ»y I'beri^fUriliv&Kidsir GVi' ' nziehis
tna'ties idvuciit aud sir Ta n^ »d-
vocAt for Uiti hig;hiK'si!< altt'r».^t r
IbrsiM jiixtuiiiclti of Uie foifc'd Uf
Ihfti ibtT wii' different weights tnad^- u^f* <it ni
Uie ooytut* boime in Bwafar as bis uia*tie id
annu Itii. vi,c. iijclje tw^ btivt^og » j^iyit of
wetgirs by ctintruct witb tJiw iiia«)tor u^ ibe
^"iut of Kii^liiiid tbcy seiiidowu tbnt pvU gf
' ]»tH li» tfiH eark of Lauderdale^ \^itb a
le of tbc mM ooiitr^ict wbi< h wcigbtft ware
111 Ills ket^ ping anil )fet Ibf; biilboiie Wa« takeit
wjtb tbc d«an of ^^nild of Edir^Mirgh bis
weigbUaiidtli vasUouedwithtbefrac-
tioD«« of tlie 1, 1 .1-, Atifl tbe sM earle is
. JjaNe bavcih ja bi^ keep-
uti^aodbavf I , iour in the
hiwdrtlli ' ^ ihe lorMl ilidereDt weights
ftnd decl >Vu' lies ad t^oc'at insisted upon
Ibe fors'ti -11 M rvi iickof tbe lybell for tbe Ibrsd
BOunie of fuurtie tlioitiiand pound as the four
of tbe bnudn^ib of tbe buJitone IvbeJU^J tliat
ibe dean *it gutldsi wci^bts ware beefier then
tbe pyll in tbe covDzie hciu£« for wbicb the de-
fcndei^ are tjable agtott wbich it was al-
ledged be Ibe s'd earieof Lauderdale bis pro'rs
•bore aamed That be denyed that artick in
•wa far as couceroes tbe earle tbat be made
Ilia of dttlen^^nt weightjj and as to tbe rent of
thioficifrK of tbeAlint tbe earle cannot be
lyiliie tor lb em in tbis for tlie law haveing
aUott^ed tbe marcl»ants eitber to bring in tbe
baUione tu tbe Mint but* to pay go iDuch luo-
B«y tbe general I wah not concerned ivbow sir
Joan Falconer made bis bari^an Wberimto it
%*^as anVred and reprtsenUfd by Ihes'J sir Jobn
Falconer tbat tlie lo«kintf lo tbe weigbts is in-
cumbent tirst to tbe Wttirden and tben to tbe
gen«rall And lie knew not of the first pyll of
weights sent down imlill tbe fourth day of Fe-
b'ry laait and uesw Imd any order or intinoa-
tione from tli '\ lu make use of these
vretebU To ^ v;isdnplyedbj' tlret-arle
of Lauderdates pro 're above naiued that be
knew not of ibe standert till tbe year Im. vie.
wxtie Riven and tlien tliey ware sent douu and
U*e inony trwnd with these weigbu But bow
or with what weights the master reeesafed tbe
tidlione he was not concerned it not beiuif
linder the iv of tbe general! or
wairden to lo eip^ht uiitiJl the money
be coined u: ta receave in the
bullionL* wiib' M* same for ivber^
4i>«**"^^'' "" in rvuHs tbev war«
(•^^ f e ttnd not taken by
^•if';. jij WHS tinv ibtni^ batsc
tkerwas so lutjcb abaitiHj of tb'e ptyce and
tli« butbunc arrot<* accordingly to the goods
iaiporlrd And tlie i^^wrvAW not bavtnng r«-
C«airi^l tbe bulbon nor bein-^ o6b'id^e:d to rc-
" f^ Ibe Mime hut the master by the act of
ameiji \» aljowed eilbtr to receiifelbe bul-
Iki in tbc ori^inaK
UcMie or mony for the same and if \\^ excee^'J
bis war rand he augbt lo nu^V fur ■■
And the clerk wan ako a check u^»
that this debait i» uunf^^ce&sojy ic(|
be bis ma'ties advyciit aud u\ loniif
■■"■'■■ ' '■' ■ ' "-■ Ulgbue^ i'ii' ' ! ' c
:d wllSt ^
to be ly V I
and its po,siL.<^
oJbcers of tbe ^
wjtii tbe deau ol ^- - _ i *
of ihe hiindredib beamr tben \\x< Iscois pyij
of weights and tbiil they aiiainp tvonrd the
peaces with tbe fractiones »
VVbilk ^AxX article ot the h i> -
aisled one alledgfanee moAie |or tUi^ K<ii\^ (4*
Lauderdale gen^all and the w'y' matie b/
the ninstei- aiul duply tiode tbertv togitbi^r
%vith tbe ansV above writtea u^« W bip
ma'ieis adrucat to the baill Being all at lentU
read heard and ^eeti and cotii^idered be tbe s^dp
lords they repelk-d tbe fors'd ;illeadgeanc^
tm/Ae fur tbe bM )2;enerall and umister ol' ilia
Mint in respect of tbe lybell aud reply butriug
tbat the officers of the Mint receaved in tby
buUione with the dean of Guild of Edinburgli
bis weights and troned the inouy with tbe
tractions of the kings weights whilk the s^dfi
lords flTand relevant to be proven * pro lU '
* dc jure' And for proveing tberof and of \
tbe quau title of tbe buflioue lybelkd in tbe hM
sixt article the saids lordti assigned to tb« '
s'd sir George Mckenzie bis iivVttes adf ocut |
and sir Patrick Home advocat for bis liigbn^^
interest ane certaine day now by gaine aoU
ordained bis ma' ties advooat perse wer to have
lettcrg direct at his instance for sumfooiuling qf
such witnesses and proba*one aud alse to pro-
duce such writts rights and docuiaeofs as b^
had or would make use of iar pmTciug tb*?raf ]
against the sMda^ Tbtrafter tbe s'd sir G«ofgtt <
>rkeuzie bismajestus advocat and mt Fatriok \
Home advocat tor bis higbues interest repealed
the fursMfleiveDtb article of tbe tyMI anenttba
profit of the exaltatione of tbe mony and coyn^
biince tbe pro<:>tamation w bcrby tbe mony ww
cryetl up being three ttbilling two pentiios one
the uncc and the pro^t of t^jcaltatione as to the
bullioiTP %i'lucb was in ti»e Mint tbe lynje qf J
' and declaired bis ma- ties advoc^t
the B*ds profeil« of the exidtationt»
IviHjJctl Lxtendiug lo tbe »'d soume ol" aijtlren j
thousand und two liundre^l |K'imds And tlie '
pro tit f if two hundretb s»ton of silver l^^ i»g m
the jMint house tbe tyme of tbe rxaliationc! '
amounting to eight thousand jKJund for
whkb tht y are lyable to bi^ umjostic Agaiust ,
^bicb article it was alMgt'd be the s'd earle ,
of Laudvi^inle hiB pro^rs nliorc named ibil
wher the marclntnK tk'"*^ « «l '" moi ♦v in place J
of bullion tbcrt (be b«iM^!
fiteof tbe exultf 1 . . *' in ttokr !
rn'i'haahilJing Hcols in (lijice ot the oimce of ]
bulli**ne And in tbat <?fir«c tire officers of the
Mint prof yded by ib<? bultione and ^btrthe
tnarchantsgavc tn tbf builioni> be bade tbe
923j 84CHAAtESn. Proceedingi against the Eart of lauierdak [SM
weight by the marchants in svre ikr as ooo-
cernes the kings interest and assigned to liis
majesties aclTocat for bis highness interest a
benefite of the exaltatione as is clear by the
prodaniationc crying up the money for the
marchants bein^ 'backward in giveing in bul-
lione to the Mint to incnrradge them therto
it was appointed that they should hare the be-
nefit of exaltatione and so wheras befor the
prorlaniationethey got fifiie fyve shilling eight
pennies for tlie ounce of buUione afterward
they got fiflie eight shilling ten pennies for the
ounce And therfor the defender cannot be
found lyable in the exaltatione mony unless it
could be alledged that the same was re-
clamed as the marchants b^ the officers of the
Hint and as to any bullion imported and bought
by the officers of the Mint they ought also to
have the benefite of the exaltatione in reeard
of the hazard of the exchange and others which
they can* To which it wto replyed be sir
'George M'kenzie his majest's advocat and sir
Patrick Home adTOcat for his highness interest
that seeng by the fors'd act of parliament anent
the bullione the marchant men were allowed to
pay in twelve shilling for the ounce of bullione
which the gencralls and master of the Mint
liaveing imployed for bullione and lb coyne the
same for his majesticf use the king augbt to
have the benefite of the exaltatione of the
bullione imported by the marchants seeing
tliey bought the bullione at so easic ane raite
since the proclamatione for crying up of the
money as befor And it is positi?eIy nflercd to
be j^ruven by the earle of Lauderdale and lonl
3Iaitland ^neralls in ane compt betwixt
them and sir John Falconer they craved pay-
ment of the exalt'on money and that by
the same reasone they cfaved payment tlier-
of from the maister by that same reasone
it must be dwe be them to tlie king non of
them can pretend right thei*to but the l>encfit
therof must bcloncr to the king And albeit the
marchants should have the benefit tif the exal-
tatione yet the officers of the Mint can not
make it appear that they payed it to the march-
ants and they have noe riglitto retain it them-
selves and thertbr they ought to pay it to the
king Which scvinth article above Cvrittcii and
alleilgeances made against the same and reply
above specified made therto being at Until
read heanl seen and considered be the sMs lords
they fliind that the profieit of the exultntionc
as to ail}' bullion and coyned mony lying by
the otHcers of the Mint the tyme of the exal-
tatione belongs to the king As also as to any
bullione imported by the officers of the 3Iint
since the crying up of the monv that the
profite of exaltatione lykewayrs befongs to the
king and as to the bullione sold and delivered
be the marchants in weight to the ofYicers of
the Mint The benetite of the exaltatione be-
longs to the marchants confonne to the act of
counsill viz. three shilling and iv^o peniiicii
upon the ounce And tbeHop the sMs lords
•ssolved the officers of the ANnt as tu the ex-
mltatfone of the bullione sold and delivered j*.)
* So in the Original,
t 80 in the Original.
certaine day now bygaine Ifor prbv^ing the
quantitie ot the bufiione and cnyned moaj
lying by the officers of the Mint the tyme oif
the exaUatione fors'd and of the bullion im-
ported l^ the officers of the Mint since the
crying up of the mony and ordained his ma-
jesties advocat to have letters direct at his in-
stance for summonding of such witnesses and
probation and alse to produce such writti
rights reasons and documents as he bad use of
for proveine therof against the s'd day Ther-
after the s'd sir George M'kenzie bis ma'tics
advocat and sir Patrick Home advocat for bis
highness interest repeated tbe eiffht article of
the above written lybell anent tbe yearly in-
tereit and piofeit arrysmg by' tbe bulliona
payed into the officers of the Mmt by tbe mar-
chanU and lyin^ in thcr hands yearly th*
years above mentionat and not cuynied And
also the nynth article of the s'd lybell anent
the melting doiiu of the leg dollors and doncat-
douiis since they ware current in the king-
dome and which current mony being melted
doun is not to be considered as buUione Bat
tlie defenders notwithstanding therof mnst be
comptable for tlie twelve shilling Soots which
they receaved from tlie marchants for the
ounce in place of bullione soeng they ongfat
to have bought bullione with the tame '*and
not melted doun the current mony of thelciiig-
domc wlierby tlie king and his sulgects re-
ceaved noe advantage But lose Aifd declaired
his majesties advocat insisted for his highne*
interest upon the s'^s two articles for payment
of the soumes above written therin contaSbed
confonne to the summonds A^ins which it-
was alledged by the earle of Lauderdale his
pr'ors above named IVinio That tlie gcuerall
of the Mint is not concerncil in the nynth
article but only the master Secunijo By t>*
hiindrclh luurtlc nynth act fyilecuth parlia^t
king James the sixth forraigne coyne naav Itt
melteil doun And also the sM sir John Fal-
coner compeired and acknowledged the mell*
ingdoun of foragne coy n current in this king^
dome because he found noe standfng lair
against it and that it had been tbepraetiief
the i^lint formerly which considerationes nndift
him to doe it \Vherunto it was ans'd be thi
pro'r above named for the sM earle of Las*
derdale that they desyred it might be mariied
that the master acknoM Knlires he had noewlur*
rand from the generall lor melting doun tbe
currant mony of the kingdome To which it
w:is replye<l by his ma'ties advocat and flir
Tati-ick lloim; advocat for his highness inter*
e^t that as to the* ])rofitc of the bullione iiB*
ported by the mor'ts and not covncd yearly
by llifi officers of the Mint an J as to tM
nieltiitg doun of the dollers ducatdonns and
other run-ent money the gVrall master and
other officers of the Mint l>cing conscious Hi
the same are lyable to the king in solidum"it
being expressly provjdsd by the fiflie nynth
4
t,/or Official Malvfratih
ftCt paHia^t ibcrta;nth kirtf^ Jtimei the si*€Ofjd
that ib« coy Hers coyti noe itioiioy thuin cryed
U> have coursv Id the laud undei' the painc of
tifatb And more fully by ihe six tic fyvt act
parliu^t eight king' Jame« the third by which
Its provydi^d ihiU in r««w>ct when mooy is
tnelted i(oun rt ts dtiutnistied wastcil and 'dis-
tn^yed in the tniiisintione by the tire to tlie
fpy^t prfjiidii'v oi' the kin^uome Tbertbr iioe
niony tbttt is current iu ihi; kiui^dome should
b« melted doun for buUiooe wtlhout special t
boence and charge fronj the kin^ And by
the stvent«i!Dlii act parlia't tir^t kiii^ Jametii
the sixth the nicUingdauo of current nciony is
dincbar^d under the painc of ei^cbeat with
the half of ther mDv'lls for tbo first Mi And
of the hafll rnov*11s for the second fait against
llie owner and mdter which does not dcrogat
fp" I cd' unrlia*t kin^ James the second
d(^ _; the same under the pain of
deuiii uiM'ii 1!^ lykewnycs agreeable to the
common law by which it is provyded that the
uieltiug iluini clipping- diminisbin^ or oiber-
vrtiye^ att^^i-in^ the curTv nt mony of« any na-
lioue 19 punUtiabio with death and if punish-
able with death much more aofrht the mony
aonteheddoun be confiiicat to the kiii^; Al-
beit the melting doun of the current niouy
bad been only simply di«;hai^ed and no pu-
niitbment at all ejected but only that the !uime
hade bt^n discfaar§fed by tbe law It ware a
Uatumll and just punishment to punish the
COOlraviners of tbe law by oonfiscating the
subject by which they contra%'eefi the law
An<l allhiit this punishment ware not exprest
but here there can not be tbe leai*t doubt or
iniestiuue l>e<^iiuse by the la.st fict the nidliniLr
liuune of the current mony is dLscbart;c<l undc*i
the pHiue ot contiscatione ot balfe of ttie
tuo%eHls for tbe tir^t fait and of tbe batll move-
able* for tbe second talt and the defenderi* hes
not only committed one fait by one mcltintr
uoun orthe current mony but all this wbyll
by past for many yean togitber did lykewaycs
melt doun the dollars and doucatiJouns and
otbf-T ctirrt'nt mony in place of bullioue to the
ill' 1 '^lu;e and trade and impoverishing of
til ^ic which a the great reasooe tber
jH sti iiur uiofiey 111 ihe cunlrey And ther bes
lieen much ot the ibraigae cuyoe that in cur-
r<-rr ■*' •' ' ' ' j-dome melted doun ADd ooe
ii m as it pugSt to have been
tf ■ u wonder tber should be any
ii* Jiiig in tbe cunirty And uemg
t; tlu' iiH ItLTs doun of tbe current
lii iod with the contisicatiofie
cil timi'b rnoie with the
Oiitili»< Ml li > ^ ^ A meltiLHi doun
being - -u . i ifeiu Liw and their
In' Iv !l ' iv>o hundretli fourtic
li 1 I i|j king Jstmet tlic
%ai AUnMii'^ till ' ' uyoe tub« br<jugbt
in to icrve »» bul OMtji^i^ cuuniiM
iMuae ^ ' ,\ :ui }% only a« to tbe for-
rti^i (« tiut to have course in the
ktngdoi,.. i^ Id Hbicb it Vffti 0)0»4 iust and
foouiibk that it abotdd ba llliU«il Oouu for
VOL. XL
bullioue but that c,anni>l b^ ^\(endit t»* for-
mignecoyne that is i- '
a« to wlucli foimcr 1 1
down tlierof stands yttjiiiLiT aim a* un>^ m
clear by ibe law 50 the reasooe of thu law in
most just and c«]iut«hle For when f " ' "■ ?
coyne is appoynted to have cout^e in
dome Its noe more looked upon as i , :
but our own coyne it being appointed t" t >>- »*
owr own coyn by his ma*ties warriUKHo Uiat
as tbe melting doun of our own coyne would
be a con trai^ent rone ol tliese laws by that aame j
reasooe the melting doun of forragne coynt
thats appointed to nare course in the king* f
dom as our own And if tbe defenders bad
melteil doun our own coyne as that would 1
have been confUcat to the king ao by tb« I
s^me re«UH>ne the doUers and doncAtflounet I
which ware current mony being melted doua (
coutrar to express laws wnder so severe pu» ^
nishment aught lykewaye* to be coutiscjit to I
the king without allowing tbe same as bullione 1
or aoy thing upon tbe accompt of dewes of J
coynodge tor the reasoncs fors'd and otbcrtJ
above niHiituiitrtl n hitting to the copper coyne J
V tt artjcleaof the sM lybclt^
t , 1 t ; .1 upon alledgeanoes pro*
pooed tor the earle of Lawdcrdale dfelaratjuut j
of the said majiter of tbe Mint and answer j
alH>ve written being all at lentU beard read]
seen and corisidireil be the saids Lords ^^i^j\
ifand the fon»M eight aiticle of the sM lybcU !
anent the yeat-ly interest and profile arr} Hitig b/ J
the bullioue payed in to the officers of the Mintl
by the marchapts and lying in tber baudtj
yrsjrly fln<l not coined in due time rclevatilj
;ind aduyittit tbe wiilie to the pcrsiewer** proba-
tioue And also fTaiH! t» >"« ♦'"^ •"liing dowai
ol the *follors tbesair i mony i«1
the kingdome and li »ince thttj
tyme they u are cut; lume can*
not be nilowed tu tu lh bulhbn#1
hirt thai not with stand mg they are eomptabl«|
tor the twelve sbilline HcotN which they le-
ceaved from the marchants tor tbe ounce jml
place of the bullione And udmiltit tbe saiAl
nynth article to the nerscwern probattone an^i
for that effect the saida lonU abaigned to the 1
naid sir frcorge M'Kcn/ie and sir PatnclLl
Hume adrocat for bit majcstica tntereift a «*er- j
taineday now bygaine for provt * •' r tail
eight and nynl article And or »^a
jesties advocat to bftir« letttfTK il*^ ^. »• iiui ia
iftance for bummonding of kucIi witness hd^I
probatiotie and *N* «" produce fc<**b
rigbtif reasones iu«(ii» en I
proveiog tberot ■ ^ «- nid du v
air George M^KcoKic tiia ma'h
Nir Fatriok Home adrocat for 1
tcrc«t rci^entrd tlje tbrsaid lent
*aid lybell That tbe enrb'* ol i
ccufcd doiible payriK*nt ol' thr
•* master of tbe Jlint vL/. mn
cw«; of lidV by a pmxpt tiotu tlir king
And lyk« *vayt*A Ktr John t^aleooer who*
• 9o ta tb« Oiigiidl
fSTJ
34 CHARLES II.' Proceedings &gmiui ike E&rl of Ltmiardak [888
offered to be proven and lie augfht to retbund
ane of tlie souines payed lieingf four thousand
Bvn hiindi'eth pound Lykwayesreiieuted the
eleTenth article of the above written lybell vis.
that the defender got six hundreth iwnnd ster-
ling as a bud or bryb from sir John Ffalconer
to obtaine his accounts allowed by the exche-
quer And alse repeated the last article of the
above written lybell viz. That the carle of
LAtiderdnle delerider extorted a sonme from
the wairden for the third nartof the remedies
of wei<^ht alle't due to the counter wainlen
Whcras the generall of the Mint being the
kings comutroller and these remedies belong-
itig to tbc King to whose use he should have
•cen the samen applycd and yet he cau«ed the
niony due for these remedies to be i>a\ od to
iiimself Against which it wns alledgedbe the
fe&id earle of Lauderdale his pro'rs nbovenamed
(denying the suid tenth and eleaventh articles)
that the said eleaventh artide was calumnious
and the earle is content to fmd the sauK^n re-
levant to be proven prout de jnre And as to
the last article alledorcd that the remedies of
the weight by immeinoriali possc-ssione be-
longed to the wairden and counter wajrdcii
and ther is nothin;: in the lybdl as to the re-
medies of weight and if these belong to the
king then this article will not have place To
which it was replyed by his ma'ties advocat
»nd sir Patrick Hfome advocat for bis majes-
ties interest that the remedies of weiglit are
Only allowed to coyn npon and to save them
from hazard when tliey are not without the
remedies But they must not work industri-
ously upon the remedies to the pr^udice of
the countris which if they doe the remedies be-
longs to the king and not to the defendera or to
the wairden or counter wairden the same not
being in itselff allowable and nothing being
dwe to them by ther ordinArio tees And it is
offered to be proven that the officers of the
!11int wrought industriously upon the remedies
^'hich were due to the kin|S^ and the per-
tewer needs say noe more but that the de-
lenders lies transacted upon that which belongv
to the king Wheninto it was dnplyed be the
Mid earle of Lauderdale defender his pro'rs
ftbovenamed adhearing to ther former alledge-
Bncf's that his majesties advocat aught to
lybell the last article thus that in troning the
peaces coyned albeit they were not found of
"ftuffitient weight yet that they ware stumpted
and vented which consisted m the generalPs
knowledge But if after the troning and stamp- ■
fog the peices be found not full wc^glit it is
nothing to tlie defender To which it was tri-
ply ed ne tJie said sir Oeoi^e M*Keozie his
Katies advocat and sir l^trick Home advocat
for his majesties intrcst That they opponed
their former rcplyes that the officers of the
.. Mint did indoKtriously tron the peaces ui)on
"tfie remedies and the officers of the Mint did
•o malv«rse as to the particullar that wlier a
peace came to be troned of a just weiglit they
iHd throw it bark and cansed sheive it domic
^amediaa H^ tftw/ <«biiantly and in-;
dustrionsly tnmed the pcioea upon the reme*
dies >Vhich three articles of the lybdlaboT«
written repeated and insisted H|Km alleadgaBcet
made against the same reply and duply abovo
specified made therto being all at tenth read
heard seen and considered be the saids lords
They ffand the forsaid tent article of the said
lylicll anent the earle of Lauderdale bis re-
ceaveing double payment of bis three years
salluric above mentioned relevant to be proven
trripto And als faml the forsaid ellevintD arti-
cle of the said lybell anent the carles reoeaving
a bud or bryb of six hundred pound sterling
from sir John Falconer to obtaine hisaooouots
allowed in exchequer relevant to be prorea
prout de jure And before answer to ne last
article of'tlie said lybell the saids lords allowed
a joynt probatione viz. to the iiersewer to prove
that the oOioere of the Mint did work indiistri-
ously upon the remedies of weight which ait
doe to the king and the quantitie of the reme-
dies and the wairden and counter wairden to
|)rove it by custome of the Mint ther was sny
thing due to them out of the remedies of weicfal
for tner office And reserved the coosiderAe
of that point anent the a'rents untill the oon-
clusione of the cause And the saids lords as-
signed to his majesties advocat and sir PUrick
Homo advocat for his majesties interest a eer^
taine day now bygaine for nroveiiig of the lor-
said tent and elevinth articles of the said lyMl
and als that member of the forsaid interloqoe*
tonr upon the last article of the said lybell ap-
pointed to be proven be the said persewer And
alse the saids lords assigned the samen day fbr
the pro'rs of the wairden and counter wairdsa
above named for proveing tlie other member of
the forsaid interloo'r upon the last article of
the said lybell and ordained either partie to
have letters of dilligence direct at ther instanoi
fbr summondingof such witnesses and proba-
tione and also to produce such writts rights
reasonos and documents as they had or would
make use of in the said maitter against the
said day reserving to either partie to dgssl
contra producenda and against witnesses m
termino as accords Thendler the said sir
George M'Kenzie his ma'ties advocat and sir
Patrick Home advocat for his roajestes intreit
insisted against the said Mr. James Falconsr
as representing the said decdst John Faloootf
his father laitc wairdan ufton the passive iMss
and particularly as successor to him tiiulo §^
crativo for his raalvei-satioiis in relatione to the
copper coyne and other articles abovcuMB^
tioned and fbr payment of the soomes if
money arrysing thcrby as also against ^Mk'
bald Falconer late counter wairden fisr thu
abuses and malversations comitted he hin hi
relatione to the article abovementioned It WM
alledged by the said 31r. James Falconer Ihr
himselfe That he hes ane dis]>o6itione fnm
his father fbr onerous' cans' an<l the same is
with the burden of his debts and this lyMI
being for vast soumes of mony lie dcsyw %
tyme may be allowed to him to advise wlmi
answer at wMl make theito And alseft wm
K.
^] mni^otheri./or Offieial Mahinaiionu
A. D. l«52.
[S
«iMgedb« ibe mid Mr Ximcs Falconer at
f*r for the said ArchbaUl Falconer Thai the
1 ArchbiJtl aii|flu to \v& ajiaaljcied )j«caus4^
^\\ is bui hill* Ix^jug- ^raut£^d allGr the
4»eda of malfersalion*- lyli^Mi**! To whilk it
WM revived be \\\h im / t aud sir
Ffttnck fioiiie ad vocal : i(il4>rc^t j
thai a« (4 tl> " ' ' ^*
James Falci i
' the ftti :
I nblJV» ;.].... ..^.iv;l., : „
I liie above writtfn urticliss
-^ ,^ (<»r Uie sauines tiboveineii-
Hf^nedtobmi be ntuit instnicitbt; ooi^roiis v^um
f>f Uic difipo^iittan uml albeit he sibuuld iuOruct
the onerous cauw? iherof Yet uotwithsUoding
hv uiusi be tyal»le to bts itiHJestte for tt»e dis-
|io»iiJun*» k'iug (jrantt'd by \lw i\ia\%ex Ut
ihe HAid Mr. J unites Fabniner durein*^ bi^
iruwt tJie tyr»j<^ lie was in the t>ffiu* lis>
prcsUKied iti iaw^ the sAme h^s been t^rantiHl ot'
nj€^ti*i The ihtb^r
thai by the ati^
" - - t-' MioiMjd Ihj
purpofi
iiciciff t
be admiue<1 to probatiane As to which it wi
represeuled by 4!ie sM brd MaitUmd that in
was minor wht*n he was joyned in the romi;
sioue witb hiit father anno Im* ^} ^^ '^'
Anil tbis being ane aciiooe at his tu-
y unsi him he wouU! iieil
u^dvocat to debaite ^
lu^fjs to be iorarmcii u>
El he was jovned in the i:c'
M.i Uibcr u« Vd Is .4itd that Lv im^^«<
I the second cojjjier jurnay that bcii
^*,„.lud it) parli^-'itt-'i' n,n-^)m ij lit- lii'i n
ftOil abo by a f f ]
iie wuf oil
■ ■ _ ,ii.jo iheyr
lui. VIC, ftiveulie lii^ii be ht«d uti lH.'ne5l no
siiUaiic uor any nf the peimiisits of the Mia
add that tJ)er wa^ no particuUar warrand't'a
uruci?^in£>: him his tna'ties \rarrand nnd uaMij
m^ all the oflioers fif the Mint thai waj'e to hi
perkcwed whtrin he i» not iiiimrd ntiitjh hj||
Icr
ho ]
d»^»('(•l^l \ytituf or aha- the
Whilik ibove WTJttt^o pro*
for tin- *. <iii Mi, James and Arrfdmid
Ooeni iumI reply iibo?e written made tljevto
•insf all at leuth red heard seen and consi-
dered b<: the s'ds lords they hniW aii3V or-
Gained the a'd Mr. James Fah^mcr to produce
the di«|f<i«itiooe ^mnied to biiu by his fall^er
ftod ioatruet tlwa ooeron leof A « also
bel#r a»»*r ortlaijieit Am Icimer to pro-
<tiiM his gifi aad for iL,., > ^ <^'ds lord»
•«ai|ra^ lo tlM saiii Mr. Jar^ r a cor-
UUMda^r now hygainc foi ,. il,* >s.M
^§fmkwne and to iitslruct (he <
tberi>f As also ta pr'Ofluct; ibe s
FftlMMMHTB ^iii wjtb ajl i4h^t wnxu n*? bts rea-
mmm and diOcumeots he lind or would muke
I ol'la ti>« 8'd tnm*r E»o-
lemmtiti the b\\ «. to
I majesties ailviM-at to oh^t-A-l ivuira f.r^idu
Themiiec ihi.^ s'd ttotione and cnofc* bc-
f agaiic cut' ' ,' of the s'ds lor^lii
|iiiVt4«S:i \tirick llomcudvo-
t tor hi« lO.iM. s ,ui' . .1r;-Viirr.1 !t|.'\ m-
aifU Hicliard Uh'I V i:.i ,i>.l .-. • riiiiict
iffOetttJlof the Mini ! vMi^d oi ttta
^muammui with bin t he may be
^od IjrahW 1W all h >i.J iicf^ uMi]
-■^-^-lel maUet-i^jatiiMi^ ^'t ill re-
lobwownolhr _ r in rda*
» to i[ic other otficf p» i*i liw M ml Ami for
lone rttid iiuymcftt of ttk*' ^oomes #f
niony ^ i auiJ re-
•Iwl ih<* »'dg
' *i^ irie ui' LaiiUcj^: li<:r
'^> I j^'ftntrail and • ihe
iyian.ij iiif'ainst the Und .>i.ull;viid an
r ^9t^^ct geucfuU q|* |i|^ M^*^ nugllt
And albvit he wl>.
■i rrsiitlvt-ii 111 urn
bti
nh'r tolI»c lybdlyf
hik ina uc uick Home i
vocal fur I < That albeii 1
ford MuitliiJid li^d ha^iii mm^^r when be Vi%
coiyoyned with hk father in the othce yet I
ou^ht to be lyable for any abuses nnd inalve
SJLtiones committed m that office by the olh^
officers of the Mint f;ceng he >ia« the supiea
otBcer of tiie 1^1 int conjoyurd uirh hi^ tlatbd
and had potier to ixtutroU all the orticers of th
Mint and to hold courts and punish dchnc|oei]
or at^- ■♦ "'m ..(i-.-^ tf iht* 3Jint tbat ha
utal V that he n as [ jjV origl
oin'-. Jlint ritiiouriU'?'irUw
abuses c> '-y t^
lie aught 1^ <|i»ij"
iuto I iii I I rti that tbt?r iiad
no a. I 111 ilw I ^.sumcs committed in
btioiii? iiitrtti And it auy of the othccrs lis
mah^n^ed he as one of the ^eneralls au;j^bt ip
iuuc ptintsheil them wy^ wayes acquautcrd Uis
majestic that ha mi>flit have remhved tit em
from tbtr ofhcc* and repeat-* the lormer grounds
upon wbicli IIk' carle ol L;iuduTdalc hi* ttutier
\ras found ly«hU; to hiiii majesniL' Ami %% htiras
it ik alledfifcd by the lord ftiuitJand that he was
tninor whcu Lc was coojoyntd m il»*i oliioe
aud ih^ he waii ^Mt of the kmifdouic smcu the
ij \n\. vir. viviiaic it IS au^'Vi'd if a mtn
I le coil ! Hi lit ao y ab uii
■ ** his i«morciy will iM>t.
ix huu from ihe refill utiuue
nod incio«tir»- Mi.Umuiii *-*|;«
year
acitM'i
the
the i^rnt
nw.nt!. 1
llltM^
-hii '
fiice wiiti hitf
utHcf^iH tor
vii\»iv4'ttty %>hi<5h
i» i)^
34 CHARLES 11. Proceedi
Act fif matrcrsatiorie as can be for if a mnn ac-
cept of une office cif tnist e«()eciaUy of ^reat
trust as to have inspectione of tlie Mint and
covnailg-e which is of so great a concernmunl
to bis uia*tic and the ^vhollkiagdome and whu
by ibe nature of his office was to redarpiie and
c(>ntir€ill the other oflScei-s and punish them
Ivheo ttw^y committ faults if nny man in such
a trust Should be negleg-ent and Je&ert his office
he aucfht not only to bo lyabl« for these things
tfiat are incumbent to his own office but for the
abuses and mahersations committed by the
other officers under his power and jurisdictiot|e
And albeit ther was no particuilat warrnnd from
his majestic for persewing- the lonl j^laitland
with the oth6r officers of the Mint it does not
import for this beint^ only a process for a ciTell
eflect of the ivstitulione the kin^ adrocat is
sumtiently warranted by vertue of his office to
oersew aU civill actiones whorin the king- may
ne concerned without anie speciali warraud
fVom his niDJeMtie and all that can be alledged
lor the lord Maiiland ,is alrcudy proponed'for
llis fat! I or and repeats the former itJterloqV ag-'t
his father Which suramouds abo?c wriltcn re-
]>eated and insistf^d upon against t!»e lord Mait-
and alleilji^ances proponed for him and ansVs
above wntten made therto being ail at Jenth
read heard seen and consider^ be the sMs
lords And they therwith weill and ryplv ad-
'vysed they ffand that the lortl Maitland being
conjoriietf wiih his ffalher in the commissione
that tiio proccs most also goe one against him
allbogh he declyncs to propone any defence in
tbe cimse And therfor the saids lords admitted
the lybell acfainst him to the said ptrs'rs
"j>rot'atione And for that eflfect assi^ed to his
*liia*tif:s advoc^at and ^ir Patrick Home adroeat
^for his ma'des interest a ccrtaue day now by-
Cfaine And ordained the s'd perscwer to have
Jetters direct at his instance for summondin^of
^auch witness and probatione and alse to pri>ituce
'audi wrttts rig'htB reasones and documents as
•he had or cnuhl wse for proveing^ the points of
4he fors*d lybeli a^^ainsl the s*d day witn certi-
"ftcalione. r. as ane act made be the s'ds lords
' 'pxtant in proces b«ars At and afirr the wbUk
"'ferrae sua assi^^nd the s*d actione und cause
I '"beiniT ng^riine called in nrcsencc of the sMs lords
jkhcsM sifGeorf^e 3I*keazie hisma'iies advo-
[^cat and sir Palntk Home ad?ocat for bis hij^h-
f»es interest ffor proveiniy of the scverall pumts
und articles of the fors*d lybell flbund relevant
' find admitted to his ma*ties prohatiune in
' tnainer ubore ^pc'cifird craved that tbe lords
^iiiijlit LTTint wttrrand for tfun^iiiiiiiMr* <,r i^^
! pa|K.n*s produced !
r i)|iointed hv bts jiut'i <x
.lite Mmt And df; s, und
v^tfirrK f AkpTt hrtbf • "nnpnl
- lords
ine to
1
Lib iiiM uaatiM rciauiu^
lu xuv niitn cuu'
htg9 ugaln$t the Eart of fjiv^t^dale
fiifmc whcrunto tliesM Jan; '
duced the books pnpers and <h ; "*•
inir viz. Imprimis Ane unsitljcijMjtl compt
of copper bearing that the weight T«ist waa
twelve thousand four hUndreih and nynlie
three stoos three pound priutetl value is twd
huodrethnyntie tour thousand four bundreth
fiftie fyye jwund four shillm^ conned Is war-
rand is two bundreth aiitie six thousand fyv a
bundreth and ttrenty ane pound m\ !>hi1liO|^
eight pennies Remedies light is twentie si?en
thousand nyn bundreth thertie four pound
fiiventeen shilling four pennies just balfe m
threttein thousanti nyn bundreth sixtie six
pound fifteen shilfmg four pennies As the »*cl ^
accompt containing ane poscript one the end'
tlierof snbscryved be Alexander Maitlaiid bear--
ing that he being called and cx>mpeirand km*
for tbe committie and interrogat whose haiid
writt the above written account or paper waa
declaired be belives the same to be hand wril*
ing of David Maiiland bis brother bears Item
two leaves toren out of book containing the ac-
compt of the copper coyned in tbe months of
January February IMarch A prill May June
July Se[*terabcr October November and De-
cember Im. vi c. siventy nyn January and Fe*
bruary Ira. v i c, eigbtie subscryved one eteiy
page by Arch bald Falconer Item atae couirt
from the exchequer containing the complnit
charge of bullione arr^sing both upon the ex.
jiort and import of his majestieB kingdotae
siaited tugither with the accounts of the parti-
cull ar ports and precincts and collectors cuuntt
therof both Htted and untitled And also bul-
lione that does arryse from them what they
have payed and what is yet resting both in the
tyme of tbe severall tacksmen and general col-
Icetors betwixt the first of November Im. Wc*
sixtie ane years And the fii-st of November
lm> fie. siventie three perused and calculal by
WiUiam earle of Dundonald twentie fytlh oi'
February im. vie. siventie four And bearing
that the charge of the bullione which the maa-
ter of the Mint hes receaved from the several!
colle<;tors and marcbanls tbe tyme of the ao*
compt eictended to tbe weight of one thotisand
two bundreth fiftie eight stone fourteen [lOutid
one ounce at eleven denire tine and als«» con-
taining the account of discharge And in one
of the articles therof hearing that the a'd air
John Falconer compter discbargefi InmaeUwilh
payeil to my lord Haltou no general I of his ma-
jesties Mint for his fees ordinary und extraor-
dinary being per annum two thousand six bun*
dreth sixiie and one pound siv shdUug right
pennies wherof four nundreth pound per an-
num as the generall halfe of the stock io the
Mint conforme to tbe act of pai i^ a
parte and included in tiie s*d v j lU-rie
which being resting since Decern be i Uu. vie.
sLxtie years he say he payed to hislo'p for
twelve years viz* from December lra« vi c* aix*
tie tilt DHeeml»er Imr vir, Kivf^ntv twf> years
.ih
uuii «;ti^ntif; bix puuuus ocotx money aa ino aM
^miatm
^■^■rita
.a
Bd
2S3j
ond o(krrs,fer Offldal Mahtnationt. A. D. 1688.
[SS*
acciiuiils cpnUiniflg- several uther articles and
iijifin tUeeDdctiriUitning'ane f^H]«ci'i|it siibficr^ved
be Juhr* duke of Lauderdale his ma'ties cnn»-
missiouer for ill e tyrae John earl of Roiht^ss
lord high chancellor aud William earle of Dan-
dofittld lords commissioners of his ma^ties the*
•aiir« And als hy sir John Falconer himsplte
ilatod the 16th day of March l«i. vi c.seavioty
four yeai-s l>eanu^ Ihe s'd acconiit of the charg-e
mid discharge to he examined perused and cal-
culul hy lliem at more lenth bears Item t^f^o
letters siihscrvTed by Arch ha ki Falconer direct
for sir John Falconer one daited the iberleenth
day of August Ini. Tic. seaventle nyn years
and the oy' daited the sixt of September
1 m, f i c. seventie i\y n years I tern ane other mis-
siTe lettei" subsci-yved be Archibdkt Falconer
and Da?id Maitland direct for sir John Falconer
dailed the third day of September Im. vj. c.
seaTiiily nyn years aciiuanting' him that the
dav betbr the lord Holtoun beine" in town gai^e
orjers by Daviil Maitland to taJl to prinling"
^ith all expeditione containing severall other
pur rku Hal's Ittim ane other letter snb5cryved
m Oavid Falconer daited the tenth day of Sep-
tember tra. vie. siventy nyn years 'direct to
sir John Falconer shewing him that Master
Maitland was at the couynzie liouse one S«-
turnduy befor wiio at ther desy re spoke to rniis-
ter Ueightman for furdering- of the work And
that the lord Haltonn was there y ester day a
considerable apace of the tbiicnoon being very
HfiilJ pleased with ther expeditione and con-
tainingf §evei'ttll other particullar* Item ane
unsubscry veil letterfrom my lord Haltoim dait-
ed the eight day of December Im. vie. sea-
vinty nyo ye^T% direct to sir John Falconf?r de-
siring- him,to shew David Maitland his precepts
auil recept given by him for mony giolten since
ther last account and with him to prepair the
iiccornpi for the lord Hattoune to shorten the
lyme which he knew he could not spaire for
o(htT busincs And shewing^ him he rcfen^dto
David Maitland to tell him his thog-btM Item
ane other letter svbscryved by mylond Hattoun
daited the twtlft day of Februarv Im. vi c,
and eightie years direct to sir John falconer de-
siring sir John to shew the bearer thereof not
only his rcceptn but all that he had to say as to
the s'd lord Halionn part of the rxpenu* frreat and
email and leHinif him that he knew the hearer
^as Irn^led hy him And so he lieliooved to
pivpairall the accounts Item ane receipt be
the 8'd Charles Maitland lord Haltoiic daite
the fourih of Jannary im. vi c. siventy nyn
y«ara Wherby he grants him to have re-
^e«?«d from sir John Falconer jtiastcr of the
BUntcomplcit payment of the equnll half of
the protit of alli^pper coyne coyned betwixt
the fors'd day of June Im, vi c. siventy siven
and the first day of Jaunary Im. ?i c. siventic
II vn Item ane other recei*i be the s*d Charles
^Ittitland dated the tivelrt day of May 1680
%vherby he ^ants him to have then and of
befbr to har« rexjeaved full payment ami satis -
tact lone from sir John Falconer master of Ym
ina'tiot Mint of the profite of the but copper
jumey coramensing' from the first of May
Im. vi c. sea?enty seaven years to the oon-
clnsione therof beings the tenth day of Fe-
bruary Im, vi c. ,eii>fhtie years beings the fret
profit of the eoualJ half therof coolorrne to his
majestes gift Item three little papers or g^oe-
rali scroll anent (he divisioneof the copi>er re-
medies Item ane caocelle*! contract betwixt
Charles Maitland of Haltone gcnerall ot the
Mint and fiir John Falconer dated the twentie
ei^ht of March Im, vi c. sevinty s«*avejfi yenri
wherhv the sM gfenerall assigned to the said sir
Mm Fttlroner tlie equall half of the twelve shil-
ling- to been [ail' oriV.] psid in by the marclmnts
for each unceof buliionein place of the said bul-
lione and that of the siyd year viz. from tlte
iirst of February Im. vi c, sivcuty sivcn to the
first of February ]m, vi c. seavinly eight with
all fioumes of mooy that should aryse therby
or should be payeil in place of the bullione for
the s*d year tor payment to the B*d generall of
two thousand marks In lew and satisTiictione of
histrwe and Uw^uir pmfits of luroishing the
s'd hullione and containing' ate diijcharge
upon the back v^^^ »ubscryve<l be the said
Charles Maitland daited the Fourth of J an wary
]m. vi c. siventie nyn wberby he grants hittt
to have receaved Ibll payment of the eonlenls
of the s'd contract as also of the like soume of
two thousand marks for the snbsccpient year
from the first of February Im. vi c. seavinty
eight to the Unit of February Im, vi c, seveinty
nyu conforme to the s'd sir /ohn Falconers banll
ot the daite the Iburth of Aoj^ust lin. vi c*
seavintie siven years Item &ne other receipt
subscryved be the said Charles Maitland
wherby he grants him then and of befor to
have receave<l from the sM sir John Faleonw*
master of hi^ majesties Mint the soume of two
thousand ruarks in full payment of his pairt of
furnishing the half of the bullione not fiayed
in specie by the marchanis at tweUe shilfing
per ounce conforme to the prio'l! act of (iarlia*t
and thai from February to February eonfoi m
to the tbrsM contract and agreement made Iht*
twtxt the said sir John Falconer and him and
acknowledgeing biiii to be ^^atisfied therof to
the Iirst of Fem^ary Im. vi c. .eigiity years
as the s'd receipt bears Item the cojipit! of ane
order snperscryved by Iub ma*tie and sub-
scry ved by . Covealric secretary dated
the twenty seavinth of August Im. vi c-
siventy tyve anthoriKing aiid requiring tb^
wairden of (he Mint in the Towr of Inindon
to deliver ane of the pyls of Scots weights
unto Richard Maitland esqiiir ane of the ge-
nerallfl of the iMint in Scothuitl to becaric<l into
Scotland by the s'd generall and to remain ther
with the otfacers of the Mint in the s'd kingdumc
as the said coppy attested by the said Uichard
ftlaitlaud and bearing the saraen to have been
compaired with the originall which wits given
to him by master Slin^j:sby master of the Mint
of In gland and which attestatione is daited the
fourth of February Im. vi c, eighlie two years
item ane coppy of the comparisone of the Scots
and English weights from great lo smftU Item
i
133]
34 CHARIja n, Pr&miinfriif:mntke Earl of Laudtrdafe
riuary 1m. vie. sciTinty nyr. till the tcnUi
Fehniary Im. vie. vighlie ycfti's. llcrtrauM
abievial of Ums huUione furtrt of the bofiki4»|
exchequer from November Im. vie. sixiie aoi
^1 Ni^v.-^iMhvr im. vie, eightie yenrn Item im
t of the cuynie houw ooiit^tiii
Thomas Achisone tntWler coy
lIie«*<IChir1ea MaitUiiH htscloimeanenthifl pre*
te&Lioni iti lurnt^hm^ the halfof the billione con-
iMniag tlic tlrpuciitions of mr John Fulconer
Anshmld Falconer and Jatnes Funjuar one the
cud And back therof laJcen by the commi&sion |
appointed hy his maje^tie for tJie Mint with sir i
Joiio Falconer bis ans'rs therto and reply for '
the said lord Haltoae aud Richard Mitland lord i both charge and d i sch arcf c from the sea vinUi da/
juMiee clerk to the said aos'rs coutainin^ the • of Aprill Jfu. vt c. eig£tie two to the Brsl of
depoflNione of »jr John Falconer sir WiThatn LAugitbt Im. vi c. and wis. * yoirs Iteai Iht
8war(i and Jamea Farf]uar on the end therof I count and rc^^ester of the silver called ttie four
lakea by the s^d commisfiioners tor the fiitat ' mark pea^^es tu'o mark {^mcta and half marll
Ifeno ane onier or precept snhscry ved by his peices past his uiajesiUes irons Inioi the tw«iitie
majestie and inhscryved by John earle of Lau- jtwoday of July inclusive Im. vir
derdale aetTeiary daited the iourth of June the fourth day of Doceiuher lii
Im, ri. c si xtie three vears requiring the Ui^'r ^ three liem arte account oft-:
prin'll thea'r deput antJ collector of hh niaje«>tie8 | majesties irons from the seaviiii
eitcyfO to pay to tkie iM Charles Maitland of | Itu. vi c. stventy tour to the ti4i.»..,.. ..... ,. .*
UaJtone or any liaveing hti order four htm- i Decemher Itn. vie. oiglitie aue yeara Jtiniiauf
dreth and thertcen pounds sterJin^ a^ certain I account of stiver past his majcatit^ iv.iu. tmra
bygone tees rosittij^f to him as genera) 1 of the the seavinth of A^irill lui* vio. sevir *
jiiat of Scotland ami that out of tlie first nod the twentie ane of October Im* vie. < ^ ^ ^
readiest excysie ot' this kiuf^dome with the lord with ane pa^^e conUtiuiug aoeaccoatu ot kt^v
Ballanden Ijia onler one the back theiof to I coyned in Dect^ruher Im. vt c. ei^^hty mm
Tlkomas Moncrie/ffor paymetit of the s*d four ' nuary February aud May Im. vie. f;i|pblU
iiundrelh and therteeo pounds sterling And Togither with ane leaff ofpii[KT cMintainMr
the a^d Charles Maitland his diiichar(^e daiteil aceount o)' silver past his luaHieiy irans* ftt^
the fvfth of Juni. im. vi c. sixtie four years j eight day of May Im. vie. ei^htie t«ro lo
g'rantingf the recept of the a'd soiime from the < fourth of Augusit the said year Itt^n
Lid lord Ballandeii lord tht^^r deput for the
tyme Item ane nmtuall discbarge betwixt
Ckarlea Maiiland of Hat tone genera 1 1 of the
Mint and sir John Falconer raaister daiied the
iwentie right ol' iVIanh Irn. vi c. seaventy sea-
veD ll^m ftiie caiicelled ticket granted he sir
John FjuMiiuT tn tlie s'd Charles! Maitlaod
(therin drRisrn*^! lord thcsVdepul) dmted the
tbird dny of A{>rill Im. tic. sireutie&iven years
ibr imvtiieat of six hundrcth pound sterling
viz. t^ie one halie at Lambas and the other half
at CandUmiss therafler coniaiuing sir John
Falconer's oath one the hack tberot taken befor
the commissioner!* tor examining the mint
Item tMro unxubacryved occorapts of debitor and
creilitour betwixt the getienills and minster of
Ibe iVIintthe one daited the first day of January
lia, vie. atiemie nyn and the other the fir«it day
«f Auguat Im. vi<v srventie nyn years item
aie oaoeelied band ir ran ted bo sir Jo tin Fal-
coner to i'ii ?"-!'- ^JaiUaoil of Haltone liaittnl the
fourth « Im. vi r. j^ivenue n\ n for the
fouuie < : . ^our tlwusmid itiarkM of prin-
cipal! pnyabie hr followes viz. fourteen thou-
•and iMArki at Caudlmis tm* vi c« fitvcnty nyu
SHecfi thousand itierks at W hitaunday Iher-
er and other fyfteifffl thuusiand flterks at
lianih<ii 4h«failer with a thousand p^tuids lor
«ftoli tenii^ UlilsBi^ and a'rent after ihe rex^v«
termes «:r iitiierol'. To which baud air
Williaii id David lV);iiiland orcaub-
acryvein^ tvunr^ses Item ane accnunt of
eofipiT coyu jittoed 9ii*i abbrcvialeil rrtim tht-
ffiix ive hooks of huyiug and working till the
Irvt ol' Jafiuary Im. vtc. seaventy uynMuixt
ik« l«fd UMhuaa and air J«.hn Fair- ■ ttb-
•or^fcd IliM aiMoibrr uniiub«.r, nut
] (jTom tht .^,, * Ja*
count of bullrone containing thecom|i
of hnUiouearrysing both u^ion the ex
imtiort of the kiogdome of Scotlaud al
git her with a psM'ticulJar account of the pi
and parts and collectors accounts tUei
tilted ai^i uplirted Aud alse hulliane ^^1
arry <k' from them what they have pay eil and
i& yet rpfiting both in iheVvme of I lie aeruenSH i
tacksi tic n anil general I ctd Wrtorv i . ^ fittl
of NoreniWr Im. vie. slxtiecnt iMtef
September Im, vi c. atreutie three wiUi the
counts of diihcharge therof fitted and suUscry v^
be John duke of Lau»lerdab hus tiioj«^i
eommie»io(H<r lor the tvme John dulu:
liothes tonl high chanoellor aod Wilhata
of Dundonald couuai«siouerH of his mi '
the«'rie Item ane book of accounts an(
bulhone containitig charge and discharge
January Im, vi c. scvrnty tour to Nov<
Im. vi c.seviuty fyvc Iti^iu aoe other book
r.iMnU infant tbeGullio' '^ />.,.t »,ri,n-r r "
I um the lit
' ^t^fu to Au^ . ......
lic^u tun abri'viats of the biiUiOine ai
from NovembtT Im. vi c. sixtie ane to N^
her lm» vie, eighlie ane years Item
meltiug rcge)»ter begitmingthe letitii nf
nuary Im. vi c. siveuty three years a;
the luurt of Oeceml*er Jm. vie. Rtv-
Item ane ju ma II book of silver ^
ning (he twoniie ftixi of March
new meitif^ jru
of February Jiu.
md Qtherijor OfflHal Malver§aHon§^
I cndiiig tlie Itrente ^ay of October Ini. vie.
' I fttie yeM%, }|rtii aue ntdtitig book be-
nog the twentiu sixt of Anrill Im. vie.
btie I wo jenn and eoding the lUird day oJ
|tisl Jni* tic. dghtietwo years Item me
ount of copper r»r9cc4*dinu: the twenty ti&;t
>e«3embt^ Im. %ic. sixtie three Item ac-
i tlicrof from tlie tweutie mghl of the s'd
Oi0eiQber to the ci|^bi«n of Apnll y 'after
acoottot ot' the sante from theoce
I of Au^pifft ibcraftcr Item an-
copper frora thenee to the. twentie of
oljtf tiierdter Item account of the same
I iheoce tiU the ivrentie ane of December
tlierafter Item ane account theroffi'oni thence
to tbiL' fvfiopn of March y 'after Item ane ac-
eoi I 1 1 ood thence to the first of October
^kv in ane account theroftroTii iheoce
^Bptto Hni of Janimry y'efter Item ane &c-
P^pnt therof froiii ihrttcetn thi-'fyfteeti ol Apnll
> llieriiflir Item atrtuiunt therof trom tbLmce to
the iii'Rt of Aprile y*efter l»era ane account
theniffrom thence to the four tccij of Novem-
ber thrreiW hem one account Iherof frt>m
Ihenoa to the twtoue thml of Apriii thcralt^^r
Item aoe account iherof from thmce to the
twenlie of June therafter Itcio ane account
theruf from thence till ttie thertoen of i^*pt<?ra-
ber thcratUr Item ane account tb^^rot from
llmoci lUl llie fifvt of Doc^mber y'etler I teen
I Maaoaottal tken>f from thence tUitlie fyfte«ti
of January thcral^er Item ane ac^^ount therof
frooi thtHioe till the fir^t of March therafter
l4«n ane aocount therof from tlience till the
first of May therafter Item ane account from
tbencetill the tii-stof June y'efter Item ane
account tbei of from thence till the first of June
theratter Item accuuut therof from thence
tiU the i'lrtt of JuUy tberaller Item account
thenif fnim thence 'till the siferiteeo of Jully
im. rte. M%%y et^ht years Item a cancelied
^<>T.*^,... k. t.. ,. ♦ u,^r jofin Falconer liaiUie John
H talbretfa dailed laal of March
Ijii. set'io item ane canoeMed
«ooi 11 1 It I ihe said sir Jaho and John
Cotii^ |.rr,, -r ,ji MontroB and James Mures
datefi the iwentie eight of January Im. tI c«
•aaTtnty nyne Item ane other cancelled con-
tra43t betiPviVt the said air John and Darid
I^'-iiitdaitidtba ^y^'
vie. niventie cjf lit all anent ' ' va
ae4V)4int of depursment* iti of
new uitll arvil lbr;<iti(; the M
lourtewtih of Jolly tm. vic
n ane IkniIc coaceniin^ the Mnn nt^i^MiuPi^
ttnt ef March im. li c. siveaty sii^ Itevo
other book cm" •-
tent of Nov I
n ttiie other in?./.. .
miHg m Jmmary i*
TlMi ane <ilh<tr book i
^^iMUg in D<M?embcr lin
lliin ane other book concert
nki^ ill K«4iruary Im. ti«;. aivuity nyne
unv ac^iunt of oop|K!r bo uglit from and
tl*a Arst of Jaauary Ini. vie* mtmdkt
, $tgst aadkg ta i^i^atDbar .ihf raHar llrm ane
lie Miot be^hiBing
▼i c. scvuity six
'iiLj flir» >linV ba-
y ei^t
ty dffht
afiieba«
accHint of the cuynzie bouse majde be John ]
Fak'oncr master tlierof betwixt the first of 1
June* Im* ri c. threcie nyne and the ttiird of]
Aprill )m. vi c. fourtie ane Item ane printing 4
hook of the Mint beginnitipf the last day ti#1
Jully im. vi c, sixti«s lhpe« and ending- in (
Julty Im. ri c. iiixtie ei^ht Item sue account of |
th(^ counxiehonse made be George Foultf f
master coynzitr be|^inning the first of Juti^sl
im. vie* and e leaven and endinyf the ilr^f
of May Im. vie. aiul ihertecn llera ane 1
anent ihe gold and silver of the Mint frae tht |
ftret of February Im. vie fyil'M?n years to tUm \
first of Jully Im. vie. and sixteen 'years Item
ane other book therof from the t^ventie hiventb
of March im. vicei^hteenlotlie first of Miucb
Im. vie. and twentie years hem ane others
book concerning the same fr*>m the twentie of]
March Im. vir« sud twentieiwo years till th« *
twentie t^vo of March Im. vie* and twnntie four ^
Item one other book coucemini; the samt i
fVom theei^htof Aprill Im. %ie. l*venty fbuf '
till the nyiit of May Im. vi o. siventie Mvea
(tern ane other eonceming the same from th# J
first of H*fpttn>ber Im. vie. and ten till th«
tenth of February Im. vi c, and eleaven Item j
ane other concerning^ the snrae from August i
Im. vie. ihretre four till November Im. via
thfetie four Item ano other ooncemtng tb«l
some from Jully twentie siveo to Ucoembtst 1
Im. ?i c. and thrttie four years Item the depo«
sitiones of ArchbaUl Falconer counter wairden^
AlexHndcr Mailland ane of the wairdens Davij
Maitland deput to the lord Halton in the Mint I
Mr. Henry Ahvinessey master^ John Falcouei
laite wairdeo air John Falconer Jame^ Farnuaf
sen iter to the lord Ilaltooe Adam Foulis dark
of the bullione Hugh Steviastoo tvritfer Mr*
James Falconer eldest laufii 11 son to the deceisi
John Fatrooer late wair' ^ yi -- fn^dp
smith in the Mtot Pstri' or t»
sir John Falconer Thoiniis ;u.,,,-> nuilt^r in
the Mint Walter RlitcheU cutter in the Mini
Thomas Ash only melter in the I^titit Thomaa
Aislie one of Ihe eertantsof tliemdriug house
taken bet or the connmieaionerH apfKunti^d by big
majestie ibr examining of the litate of the Mint
Thertifterthe said sir George M'kenzie his ma«
jesties adi^ooat and tir Pntrirk Home advocat
for lii^ hi^hnc*R inlere*t dodaired they re{)eated
the compts eompt books bonds ticket^: recq»tf
and other writts above montiooed and deposl*
rsijHses aAiave iiamcHl taken be-
'jnern
i>i iuf I fjMirs f»f the
proveing the articles of the lyb<*ll abofe
written found relevr^ti* "»•■' « "-v^ts-d to ther
probfttioiie And for »,r the lorda
as to the f<*rs*d six 1 . . , .atl sterlmi^
E'veii as a bud or brjb to the tmid ^arle of
luderdale by the sM sir John Fslcooet
to \:^ his accottats allowed by the lords Oilf tha >
theVite and eibohequer and pav<D<?nt of his yni*
iifst ballaace Iroin \m mfj^vtie crdved tbatflr>
WdliacB Sharp ef Hi,<>niehill laie cash keeper
who 4vaa prcaent at the coiooaing betwixt tb«
aark atid air John and a subafiry ving vtiluei ia*
> appoiaAed for exsrntoiiig
Mint now prod u ceil tor
ti>e ticket g^rante*! by sir JoUn mi^bt be exa-
tnineJ therHneat Whicb desire oi his nm'iiest
mdvi^oiil bdnt,^ consideretl be tlie sMs lurds ihej
ordauiied air William Sharp to. be exiimiDed
i4(M>n the potnis above riientionecl and alse tbe
b&iil p«raoni« above named i^rho formerly bad
detioiied U» be re- exam ioed in presence of llie
i^u lonia upou tbe pouits ^vberupon tbey
formerly deponed and granted warrand lo
citt tiieiii all to tiiai effect And accord*
ingly the sM sir WiUiara Sharp and baill
persooes abovenuraed who formerly deponed
|>em^ uU law'ilie snmoiid and the b'^s'*' ^Vil-
bum Sharp btiii^ pei'soually presL-nt soieiiinly
r»orn and exQiuiiied u\Hm ihe points above
iirilten deponed ami declairc'd as hisj oath and
dejKMiitioae stibscry veil *vttb bis hand extant in
pruces bi'iii'S Aud aUe the said Arcbbald
Falconer and Alex'r and David Maidands Mr.
Henry Alcorn sir John Falconer James Fi*r-
qnor 3li* James Falconer Henry Lucar Patrick
Oj»:dvie Tbotnas 3Iurray Walter Mitchell and
Thomaii Asb being: all personally present so-
leninly sworn and examined iJk ane aiWr ane
©iher ui>on what ihey bade been formerly in*
teiTOgat and deponed befor the s'ds coiunii^*
iiotiers af^pointed ibr examinalione of tbe slate
pf tlie iViint Tbey adhered ail of them to tber
fonner defiositioncs and depon^ and declared
fts iher hWs oaths and dqiositiones extant in
proces beai*s Ther.iiter tbe s*d actione and
cause b^rin^ againe called in presence of tbe
i'ds lords and the s*ds Charles earle of Lan-
derdule Richard lonl Alaitland sir John Mr.
James and ArchbakI Falconers defenders ther
pro'm abovenumed rex^ive being oil tymes
«»Jkd requiixid and wr]^ by ane macer at tbe
-k«| M vse is to exhibit and produce in pre-
gHotlkf tbe s'ds lorda all tbe writt^ and proba-
tione they bad for proveing tbe points of the
act above written admitted to tbe proUatione
and allowed to be proven and instvncted by
tliera in mainer above specLftcd and to salisfie
the points of tbe K'd act as to ther pairts
And lykwayes Ihe sM Mr. James Falconer
for btmselfe and as pro'r for Aircbbald Falconer
being oft tymes called i-eqnired and wi-gtd to
produce the dispositione alledged upon granted
by bis tftther to him witlx tbe sM Archbald
J^alconer bis gift and lo satisfietbe other points
of ihc s*d act They and ilk ane of them iail-
xted and sucoumed in doeinj^ tberof aj» was
Weill known lo tbe s'ds lords and therfi>r tiiev
circumdnccd tbe terme against all of tlie a*d8
defenders Tberetkr llie s'ds lords baveing all
at leoih read licard seen and considered tbe
tbrsM lybellcHl summonds and points and arti-
cle* tb«froff«nmd relevatit and admiUed to bis
jp, ' ; ' * ne compts compl
\^^,, IS bftnds tickets re-
^^., n«' T^roduced and
,1^1 i named pro-
,^,, r iiinkveing of
l|], >iimonds
• ti And
ll, . uith the whtts
all :i- the dd'crs Weill
^^^H
t
wg00gSmn
and ry ply adf ised The a'ds lord^ fland tt proven J
that Charles cairle of I^auderdale juit; of the
generalls of tbe Mint did take up tbe acccmipu
of tbe LO[»per jurnay* from the wairdeni* and
that tbey war destroyed and that tlicr bein^
a stop put to the coynadge of tli<
year 1 m. vi c. siventic nyn tbe it i ■
uy tbe counsrll fiir tbe second juiu
exceeded that by bis ordor and wj«r
officers of the Mint proceeded ui th^
of more copper then was allowed by
rands And that be got the graitest Kham ui
the profits of the copper coyoa and that thcr
was tlnee tbou«»nd nyn hundretb ti> f '^' "^^
stone coy ncd alter Ihe act of the in
and that he did not imptoy the st«>ok .
tliousand marks ap| pointed by thi
ing of bullioiie AH)eit the earl a . ^ i
receavcd payfuent and allowance of the a'ntut
of Ibe sM Block of bullioneas iKit bad been iai*_
pktyed and that be was a sharer of the
mcdes of tbe silver coyne and that the dean <
Guilds weights ware made use of in the Miall
for receaving of tbe ballione And that
mony was troned by tbe fraction i'
weights and that when the \m
justed to tbe Scots pyle afte*' the hcins sia
weight was intimalto tlie officers of the J
the earle caused debver u: '
wairdens and to sett by th
and caused sett a new sett ul ^. v .^ .ii.> .-,,jk.^.v., 14 ,
tbe dean of Guilds weights couforin io whtcli 1
tbey did then work till the end <»f Jatitmnr 1
Im. vie. eightictwo years And that hi^ 1
to cause essey the chisel I beads swcps .i
and to see that tlie mony csscyed and covtiji.l
ed was of just weight and fyniie^ And albei^l
be did know the counterwairden did not atll
his oiSce yet be did not cbalcoge him for it i
neglectecf to hold compt and to pmiish the
ficers of the Mint for tbe ne{>lett and malve
sationes in ther office which the tm^
nerall of the Mint was impowred to tJ
comissione and Hbiid as to the lord .uamnTii
conjunct generall with bis father that be 4
clame given in to sir John Falconer he re(]uir<
ed fi^m sir John tbe master a i^haire of IlK
probts of tbe twelve sbilling tiT>oii tlu^ ^titcc^i
bullione and of the profits of tl^
tbe weights and of the profits ot 1
money And that albeit bis majesbe graiiM
warrand to the maistcr of the Mint at the Ta
of Londoue to delifer a pyll of weight to tli^
lord Maitland as ane of the general :«t of ; '
Mint of Scotland to be caned to Scotland 1
warand was daited in August inu vi c si^
fyife And accordingly the lord^i^laillaij
receave and brnig down the p> II ot' wci^'
be made u*(e ol in the Mint of Scotland
notwithstanding it was keepcd up and aevf
intiniQl to the otiicers of the ^1'
wse of till February ini, vi t \t
And when the weights formeii. 1 . ui« i
ware reduced to the Scots pyll tbey lieinff
again changed tbe oHicers ot Uie Mint dii
make use of the dean of Guilds weigltti) cmb*
forme to whicb tbey wrought till ibe 4Ui4
aa^K
4&^^^
and otheri.fnT'OfficM Matvertaii&nt.
A*D, iSse.
im.
i
th(.
ilia the
Ilowui
my WHS Koynctl m;
D«l the monv nlir
low i'
red fjy lii'V ^\:j]*,;;ni!
Actiner tluT o\d v
ftftis f)f I lie If
Urtk-ii^ ni"*
t aiitl iivA.
two yrtiT^ ftrifl that
,,dto
■ hicU lie
ic Ami
Tcr late
(>l»ertht?
•la
ami th^i he
i the remedieB
(iMi (jinteanil that
en And the lonl%
. that tlipy went one in
r allcr <!ie (juniititie al-
.a
1 ^Ot a
iy John
luff r of ihe
ita*l that the
, ^ i' the remc-
llir
h] ill.
sheer tlicm tioim ami to brini^^ them to the
die niut so ubvnyr? inuif il the ]»eic«iin-
kIv npoi» • - to the
k*hMtt ihr ! reoync
lords (lu.iJ lh4.L ihiii: \mx.» sivrtifceii
sloiie of co|iJier coyiied the lir«t
f jumiiy hcginninj;' i
hu Im. vie, sialic sine
! firtit day of Aufijujit im.
And that ihrr was fourkcn
fUy of
li,.
•433 twelve thou-
id I'.
^yo«d the vecaod ct)f»|i(fT
> first day of INUy lin.
E and 4;ndine^ thctrui day of t'eb. Im, vic»
title years atid thnt thtT wa» iiyn thnu-
kl fyur himrh* MireeHloiiif coy»ied
> jwTOod copjH I i jf ri<ii' wa« Hllowcd
|t the warrands^ mLchi^ iher wiik tliref» ihoii-
1 nyn liundrt*th nvntie nvn stone otirnoimrl
>iiu limt
Ctrl of
...r .1...
and fonr pound and for the three thonsand DyKl
hiindretb nyntie nyn stone coyned aiuce tj»«j
»c» of Htdernnitte \i thretie two shiUing th«;|
' !uas9 and hody of the coppej* not I
] atnoutils to th^t flotiiite of aiie hoi]
drt II iinij two t'l ' ' iMiudrcth nyn(i#J
eight iKtund c'l is luony AnM
as to the seconii sinn le yiu m til*? ttvrlf'ethilUnf 1
upon the ounce of hidhonc niid eight uKiolttf
.n/.ni the profit* nrrysing' to the kinjj hy
ne plven in to the officers of the Min
!tn<i not coyned The lords remilts these
the lord thcsV the otHcers of th^l
1,' regullarly and in course ly able till
coujpt to the lord thesanrer for the same
as i%t the third article anent thr- prf>ftt of tin
d hf\
.ithiit]
pn ilie pound whu'li ior 'i thon-
tid f^toDe coynrd mor^> thi ued by
UHfrandn thu firpt cojjptr jiirnay will
fcfiitn* ff» thf *<»*wrnr nf f^ro hnnfJrHfi n.nd
ue
^'iicil m»iT then [^ alJtu^ cd by tiic wiutiumIh
? second chopper jumav befor the act of in-
* SHl that natne nuta nill nnionnl to the
if d]^hiy st¥cm thousnnd nvn hundr^ih
stock of iwenlie thousand mar!
the UirT lor buying- of bullion \
t 11 and master of t)ie iMiat did uc
lid allowance of the soume of twelve
initi'iH til inni'ks as the a*rent of the fa
twenljc thousand marks yearly albi^itthestockJ
was uot ioiployed for buying uf bullion tis wakl
appointed by ihe Vtag and therfor ffand lh«
Iftite generall and master are h -^i '■' ■ .f/i /i|^
iottdum vise* the carle of Laud jfe-
Jieratl froai tbi' Vijulm vir . ibat
'•'^tC ioiutti ■ . ^ ,11* \.')l!i!- Ill v\\\' nr-
dmury anuall of the sani a' rent iwtmnc tianiui\
fr(»ni the ye*ir \m. vi c, sivtie two to the year "
liij. TIC, ti^bue lhri;e hem;^ twentie ycari j
which cxtf ud^i in all to tlie st>uine of twentie.n
iyrv thou:>4aid and six* hundreth nouud Scol*ft
niuny Ami cir John Falconer fuite nmftI^r I
from the tyme of his entrie to the said uftic« \
Avhich was the firstof Januarv Im, %ic. ^e*
• ' " -' ' " tidn
-^-« ■-' a >io..,.-. . ,,...,,.,.., (he
printing hook^ that tlie officers of thrMint*
Inn 1 1 February Im. vie. siventiefour to Au-
Jin. vie, ciifhlie two hare alwayci
^ >1 Ivelow the standert some iit ten denir^
tivititic twii g^raiti^ »oiiie lyniea at ten denir ,
Jtrcnlie three jnrrains which bein^ all exactly
calculat at the rexUve finnea upon the bullions
cnyned within ihut tytne amounts to the t^tnimo
of nvn tbouwtod lyve hundreth ihre'iij two
pound four pennies niony forsnid Ami as la
the ^bfiharticU* anentihe 1^ tjout *
e<bfv ffanrl it proven that A\*
heads sweeps aod Hciaps^ w-.hv mrum :uhm<t
Iher was no cssey taken and tfnnd bo the mi It-
''"" * L- •' ' :...,..,,;.. ,,t itifj chisell heads
1 and coyned front
: 1.^. , , ., , . Ini. %i e, sivcnlie
three to the first day of DeeeniWr Im. /ic,
etMiitit^ t\v<i (the former meltinff' books being'
« iterids to four hundreth si^iii* uyu
N ii pound IhiTteen ounc e** Aod ffand
thai thiT ^va« a hundreth and cij^htietwo stone
two wuces Tipd limr drop* coyne4 snicc the
act of iitdetutMlv and that the value of tlie
stone v'ot is efeven hundreth eig'lttie four
nsarks %\\ slulliii;^ rip;hl prnnirs which for the
firf^Uid himdrtth e};^htic tvtru i^toac two ouncofl
* it
S4S]
34CHAltLBS 11. ihwoMiimgi9gaintiaeEm1^LmamUk,i^e.l9tA
undl fbur drops coined since tlie act of inden*
oitie amounts to tbc soume of ane liinidFHli
Iburtie three thonsand siveu liimdreth twentie
-fliz pound mony fbrsaid And as to the sixt ar-
ticle anent the 'difference of the weights from
the Si*ut8 pyll iimd it proven that the officers
of the Mint did make use of the dean of Galds
"vi-eigphts in rcceaveing of the bulUone and that
they troiie<l the i>eaces by the fractious of the
kiocfs weights and ffand it proven that the dean
4if Guilds weights are heavier then the Scots
fiyle two unces and eight drop upon the stone
which after deductione of what waa coyued
•f dollars and doucat donns these not being al-
lowed for hullione that the difference ot the
weights from the first day of September Im.
▼i c. siventic three till the first day of Septem-
ber Im. vi c. eightie two amounts to the
■oume of fyve thousand three hundreth eightie
«iz pound mony fursaid And as to the siveuth
article anent theescaltatione mony ffand it proven
J»y the printing books that the qnantitie of but- ,
Jkine payed in upon the kin^ aooompt and
Qoyned since the daite of the oounsills pro-
clomatione in March Im. vi c. eightie ane
was threa hundred and therteen stons six
pounds six unces tyfteen drop which at eleven
pundreth eighty four marks six shilling eight
pennies the stone t}ie exaltatioue being fyve per
cent extends to twelve thousand three hundreth
vixtie eight pound therteen shilling four pen-
nies And haveing ordained sir John Falconer
and Archbald Falconers to depon anent the
f]uantitie of the buUioneand coyned mony that
was lying by them the tyme ot the exaltatioue
and accordingly sir John Falconer and Arch-
bald Falconer having deponed ffund that thcr
was thretie one stone one ]x:und therteen
iioces four denires of bulUone and current
mony lying by them the tyme of the exalta'ne
which at the forsaid ruite of eleven hundreth
and eightie four marks six hhilling eight pen-
nies u|>on the stone extends to twelve hundreth
twentie eight |K>unds tlicrteen shilling four pen-
nies Scots mony And as to the nynt article
anent the melting doun of the dollers and
doucat douns ffand be the melting books from
the siventh day of January Im. vi c. seavinty
three to the first day ot January Im. vi c.
eightie two that thcr was two hundred eightieaue
atone twelve pounds fy tteen ounces ten drop of
dollors and doucat douns melted doun the tyme
ibrsaid which not being allowed as hullione at
twelve shilhng upon the ounce amounts to the
Boume of fuurtie three thousand two hundreth
eighiie six pound Diooy iurs'd And as to the tent
article anent the earie of Lauderdaldi neeaF-
rog double payment of four tbonsand and ava
hundreth pound tor three vean saHarie lybdM
fiand thesamen proven be the earlei recept
to tiie kvd BaUanden upon his miyesftieB fni^
cept hi the year lm» vi c. sixte fiwr and tha
fourth articlo of sir John Falconers ooBDjpt df
bnllione fitted be the commissioners or tba
thes*rie in the year Im. vi c. siventy four an4
commissioneri
ty four an4
therfor fland h'im lyable to refoond the Hid
soume and tlie value of the ordinar a'rcm
therof flomiN^ c/fimnifrora the tyme of the kft
payrqent made by sir John Falconer which wis
at Martimass Im. vi c. aevinty two which ia
haill extends to the soume of sivea thooaaad
nyn htmdreth twentie ane pounds ten rinlliiy
Scots And as to the eleventh article anent tfaa
band of six hundred pounds granted be sr
John Falconer to the earie to ^ his cooali
allowed The lords in reaard of the retired
ticket produced the mutual! discharge betwiit
tlie carle and sir John daited tlie twentie eight
of March im. vi c. siventie siven the cnnatt
account betwixt them and the other prphatieaii
adduced as to that article finds that the fofaiid
band of six hundred pounds sterling' is pt^
suraed to have been given for the said caaaa
and so is the kings mony And therfer decemnl
the earle to refound the same with the value flf
the ordinary a'rent y*of nomine dmmni fnm tin
first of January Im. vi c. siventy njme to thi
first ot January Im. vi c. eightie three cstn^
ing in all to the soome of eight thousand ava
hundreth and twentie eight pounds SootniuiM
betbr extracting the decrcit the earie can om^
descend and instruct tiutf the fors'd ticket na
granted tor ane wy' cause then that oanda-
scondeil one in the ly bell And as to the twdft
article ttand it proven that the offioera irf* tin
Mint wTOught industriously upon the reaaediii
of weight and ffand these reniedies at a -ffdl
in the mark peice of mony coyned ainca thi
first day of September 1 m. Vi c. eightie two dM
amount to six thousand six hundred pouaA
mony tbrs'd In respect wherof awl that atmr
befor the extracting therof the s'd earia ef
Lauderdale did not condescend nor instruct tiMK
the tbrs'd ticket of six hundred pound i
was granted for ane other cause then thi
descended and in the lybell The m
^ave and pronounced tlicr decreet and i
in the s'd matter decerning ordaining a
and declainng in mancr above writtea and m^
duins letters of homing one f^'tleen dayeaiMl
necessar to be direct heimpon dec. Jta^
tractum, 6gc Da. itecBOL
9i5i] Ih-ocMfirngM^gtimsi ifeXoitirJktAtrr Afoi. A, Di iSSI.
[31«
330. Proceedings against Several Pirsdks of Lai^ebkrhire, foi
Treason: 33 Charles IL a.b. 16^1* [Now first printeil
frooi the Records of Justiciary at Edinburgh.]
li* JusTTciJiaiJCt 8. D. N. Reips te»U ta
l^etono Biirgi de £diQl»irfh decimo
quurto die meniiis Marti i, 1681, per bono-
rubibs viros WtiieknuA Comiteni de
Qudnibenj, Jmg^9nmm Geoeraloro,
Mileliiiiitni MaitlMd dft Duddop Jus-
ticiarie Clef team, JUeiimi Ilominutn dc
Nairne, Duininos JfteotMiiD Foutis de
JDaftdem BttMiMir de Fcirret,
Faksooftr im Nswtoun, et Ho-
Jtmni Uo^ediellsrcarsc CMnmufitoDiirius
uukiftm dictii 8^ D. N. lAiifts.
Curia Lg^itimc aiGrinata*
L HE sAid day aneiil our soveraigne lordfc
«^imiiisil letters of treaaoa, raised, uised an4
^xciit, at tUe instance of sir Gwr^e M^keo^ie
of Roselmiigh, his majesties advocat, for h}%
♦ " ilarch 17 & 18, 168 L At Cnminal
C^urt the beritora of Clidcsdale who were m
the rebellion at Bothwelbriit^e in 1679 beiug
upoQ the (laniiel ; U was aUedg'e^l for Gada
tiaiuiUoH of Uitl, SOD to Itaplocb, absent, that
be cunlit not he dechvred fui^itire fwhat needs
they IjijIi Uv declared fui,auve, ami a sentence
of fortWkuie Jikevv:^ys he pronouivced oi^ainst
them ? mij^ht uol ttie last serve for both t) be-
eause liavinir beeo in prison, tbe privy council
liad »t'l iiiiu at liberty, to appear at a day not
yet come. The J ustieiars found, notwith^and-
ing of ihaA bond, that he ought to have apnear*
eQ before tbeni in i his court. 2do, aUeclped,
He was iUegaily suinmone<l at his dwelling-
liDUse of Hm ; whei-eas forty days before ttiat
his wile and fari*ily dwelt at Slratliaren, Aa-
•wersd by tbe kiii|^'a advocate, that no defie ace
mtmU hm |if«poiie<& for an ahf>ent irattoi*.
, tbe ^rty days were intrudiieed in lii-
r of ]Mtf«ii£rs, that if a man hnd suyed 40
I HI m place, ihougb it was tu9t bia c«sidei»ee
I daiBtcil.^ yet tbe pana^r Mii^kt mmtteen
I til ere, it lonndio^ cam^eniittm/ofimnimsi
Wlm ; b«it not vice verutt ibai a ciialiKMi Miould
hm uida^fui ii' b^s wetc 40 daya abaeia4 1'roiM his
mnt bouse : ** Tbe ciiraitiAl lords ibiMvd no
I drfmrr could be propuiieJ for a tniiloif u&Jess
■■jiMro powQikt/' Home tbou^'bi this hurd,
Mmnig itmnifh vo casAAt defend in cauiOy yet I
f My |if9fa>nia * pcoliniiileixi rationein et causa m
* abnenLa^' aA esai»BGBie of &ickn(:!j8« or stky that
Ii« m ab««tH * ntipytiiqc'eamiia,' or nut at aH
li«wl» broiiod UlegaU^ at the wroci^
Olid not te bt cited at all, are e^^ulpiiiiiaut.
** ^uwrtlur* ifa creditor oft he rebisia, whose
Mi^ m Micwalvrnned, oiay appear tbr an afaseDt
trwutM^ aikd pcodure his interest, * vid^ns rem
* atiaaa igi,^ so tbdii be may lose bi& rosney ;
ml ii' be will bo adauMed ti* objed agiim^ llie
tb«r, Lhivid €»ibscm thar, Doiid Robieson tliOF^
caUed Pocsio, James B^natttyno, wrifbt i
! Jaines Park, weai er tber, J«>bii Stinp&, mo
ther, J>avid Weir ther, aire to Htij|(b Wt
titer, Liu|()i Iker, son lo WiUiana Ker, in
I rtioakl, Tbomas logbs, sboeroaker in Lanork
Robert Haddowc, younjj^er tberof, Mr. "
filoek, of Silvertounhill, John Bttekle^younifer^l
iHgbnes enterest. a^^imaat Mno WilvDn, wroii
ter in LAoerkf and beriior of 0laiiiiepatJi : Bird
Thomas Piltnns, in Lanerk, James Ia
vvreilter tber, WiUiaaa Ihck ther, Jr4in Thom-
soD, carpeiiler tkaVf Alttxander Brown the
.IrdiibBld Symoon, tb«-, Dairid Wbyi
siBitb ibir, Tbomoo Laueblan, inercliand
Iber, WiOiaMn FdrgoaoD, weaver ther, VfiU
ham TwoMik, ton ti* TweddaJev'i
late balyie ther, Gideon Weir, ^tvnesmiili' |
Baiial
rdoraocy aad probation ? Tbougb it be t<
eatable, yet ii was thought ii woold nol
parmitted, liis beings oaly a cit il irrierest.
Gayl. Lib, 1. de n^e |»u1k e. 10* who provi
that *■ in criminaluHis procurator uao debet ail
' milli,^ but the ^tiitty jKinnel hiuneif moat bt
persooaHy present, steing the jtidge may ex«
piscate atucii froin btm, which camiotbe donA
if be was albwed lo appear oniy by a proci^
rator,
« For otkers, viz. Muirbeod of Bradiabollii,
<^c. It w^ alled^d, tlmt il io true, ^ advo4*
*• caiua fisci non prtestmiitar oaliinioiBrt»' yet
gamknaaa livea^ eilatts, fomiaoo ami v^ral
14011% oiigbit ool to bo bionglil ia qaailina wl
oMt ho cotidosoenii im hi» iofoctner, thai hm
laigbt siibscribo '^ m poena tahouiB,' both cou<4
tbrta to tlie citii kiw, and the lavi and practico
of all tiAtiottii, yid thu: act \'?H7 ; for the ver]^'
1 ----'--' ''3VC3 a a?igiiio, thukigk ilieybeao#J
e. die general abnlilioae. xbe a#^ |
u^ ..;. ...Lhtred he bad no iniarsiitr, bal iHd
privy council and Kxchei|uer having^ employed
one to take up lists of all suspect porsons/hei'
by the Coancil's w^arrant, now pursuad ibiaai
** Tbe^iisihnes fouod tbe council's warraalsafl'
ficient to Itberata Iba advocate frotn coadcsocaik
mgp tipva 99^ otibiT iulormer ;'* tboo^ Ihia
■air eiaeuatc the force of tba said jtist act of i
nMMBMaat.
*^ Soctfti'rviUe of Urai was cleansed by thO
assii£e. Vide the assize pursued fwr it, Itilla
Juoe Itidh l^ae the Case p. 73, oi tbif
Volunat,|
'* TlMea ibo advocia ofibriog ta cottlinoa tbaj
diet afi^ainal tbe rest of tbe becilOBH it waai
lerijtfed. The diet was peremptory, and baboira
eithar lo bo dcaarted, or else tbey isnmectiaael^
triad and put to llie kuowU^dgt; of an lasiaok
'* Tka kola found iba advocala oug|ii la aaaiiil
«47]
33 CHARLES 11. Proceedingi agaifut the Lanerkihire Men, [248
mason and wright in Lanerk, Alexander
Ba]jie, smith ther, Alexander Anderson, liev-
tenncnt to captain Wilson, heritor ther, John
PiHujihruy ther, Thomas Hinsclwood ther,
-
against Kuch whose witnesses in the list were all
present ; but as to these who were not in that
case, continued them to June next, he ])eremp-
toril)r bringing in all his witnesses, and insist-
ing ttieu ; otherwise the diet should be de-
serted."
*' At this time, the criminal lords got a pre-
cognition what the witnesses could say with
doss doors, thon<i^h not upon oath, yet caused
ihera subscribe their declarations, ihat quoad
6uch as they ibund no probation again&t they
might desert the diet; \ihich abridged their
labour, there being upwards of seventy or
eighty on the [mnnei ; but it was clearly ^ pro-
* ditiu testimonii,' and a dau;^-ei'0us novelty eii-
piging the witnesses to bide at what they say
behind the panuePs back, and very irrec^lar in
the Criminal Court, where by act oi parlia-
ment 1587, no probation can be taken, but in
presence of the pannels ami assize : And the
use of these precognitions have only been as-
Fumed by the privy council. Some of them
^ho were continued, or dc serted, (seeing new
letters might hereafter be raised against them,)
desired their witnesses in defence and excul|)a-
tion roig^ht be received, to ly * in retentis ad
* probationem innocentiae,' lest they should die
medio tempore. This was refused, seeing the
king ran the same risque with his ; yet they
]iad precognosced ; but that decluratiitn (if the
witnesses died) would not prove.*' Fouutuinhall.
<< Ui)on the 18th and 2l6t of March, 1 find,
by the registers, prcat numbers of heritora in
the shire of Lucerk are present, and called : I
mav class them in two branches ; some of them
make a resignation of their lands, and are dis-
missed ; and others of them stand their trial,
And are Ibrfeited, many of them in absence.
iW the first sort, John Williamson^ son to
■Icstpli IVilliainsuii heritor in Holl, John
!S|jr('ul \()iingi-r, writer in Glasgow, James
IVaikor younjjer of ilaekethurn, William
Twcddalc late Kailie of Lanerk, Hugh Weir
mcn-luint there, being pannclled, they have an
offer n.ade to them «;f the king's indemnity,
and accept of it, and icnuunce and resign in
favours of the king, commissioners of the trea-
sury, :ind ihfir donntors, all lands and heritages
ihWvn to them, or which they had a rig^ht to,
before his im'jesty's act of grace, ann as to
llicm the loriis (U'si-rt the diet hi pcrpeluum.
This was a kind of composition by voluntary
pailinpf with that part of their heritage, which
Ihcy had a right to in their own person, and
then at the death of their parr nts they came in
to the rest of the lands. Thus somewhat at
least was preserved, but it was but few got this
lavonr.
•' The far greater number, who were, as the
fiirmer, cited to tliia diet, and indicted in com-
loon fbrna, as guilty of therebellionat Bothwel,
James Muirhead, smith ther, John Jack in
Nemphler, llobert Frnm ther, ^Villiam F«d-
zean, mason tliei*. Hew '8omcrvaill, of Wdl-
frads, John Hutchieson, of Ilairlawe, Somer-
met with harder measures, as David White
smith in Lanerk, and other forty six belonging
to Lanerk shire, whose names are insert in the
proclamati(»n, of tlie date October 8. Thes^
nad probation led agabst theui in absence, and
all that is proven against most of them is con-
verse with rebels, when they were goinff op
and down that shire, and lying in camp there,
in which the whole shire was neoeamiH] at
that time involved; and they are all fomted
in common form, and ordered to be execatedas
traitors, when they shall bo apprehended.
*^ A ievr others ar^ brought olT by the Ter-
dict of the assize, as not having their indieC-
, mont proven against them : Indeed the proba-
tion against them who are forfeited is abuii*
dantlylame; but, it seems, the advocate voold
hiave all, who did not resign their iandsy to be
concluded under the same condemnation."
"June, 1681. It being represented to die
council, that many persons in Kirkcudbright,
Wigioun, and Dumfries, who were in the lite
rebellion, contiiiue in their houses^ and in-
tromit with their estates, the sheriflb and
other magisti-ates are ordained to seizie aiod
present them to justice, and at the same time
to secure their rents and lands for bis roajcit/i
use : It is likewise recommended to them to
6cciirethecou:iiry from field-conventicles, and
punish such as are guiltj^', witli certificatkiOi
that if they fail, the council will sendln forces.
" In a little time, those onlers are more ge-
nerally extended to the shires of Lanerk,
Air, and Galloway, in a proclamation, which
because I have not seen in print, and it contain
a good many of such as were forfeited hit
year and this, 1 have given it here from theic-
gisters :
' Charles, &c. greeting. Forasmnch as the
* persons underwritten, are by decreet of the
' lords commissioners of justiciary, forfeited ia
* their lives, lands and goods, for their treasMi-
' able risinsf in arms in the late rebellion it
* Doth wel -bridge, viz. David White smith in
* Lanerk, Gideon Weir gunsmith there, Dmk
* Gibson there, John 'AV ilson writer there, Ur.
* Thomas Pillans there, James Lawrie write
* (here, Archibald Simpson there, Thoinii
* Lauehlan there, William Fergusson them,
* John Semple mason there, Thomas liyb*
* there, Alexander Anderson there, John
* Fumphrav there, John Jack in Nemplair,
* Wilham Tadzean mason in I^anerk, Robect
* Lockhart of Birkhill, James Weir of John*
*• sliilp, John Steil in Overwaterhead, Joha
< Haddow in Douglas, James W hite theie^
^ William Falconer in Hamiltoun, Aithor
* Tacket there, Gavin Wotherspoon of Heath-
* rie-know, John Eastoun |>ortioner of Qiuunrv>
' neen, Kobert Goodwine maltman in GiaaMr,
* James Cuningham merchant these, Smb
849]
/or Tnincn*
A. D. 1^81.
[250^
Tmill of Yaifdbouse, I^uVe Greinibeills of
Hog^swajitle, liobert Lockbftrt of Birkhitl,
Gavin UiimiUon uf Hi tl» Gavin 11:iiiiiilua| of
W'eaiiowe, James Weir, of Jolmshill, James
*. Blackwel son to Tliomiis Blackwcl there,
< W ilium KitUleJ Rnmriii KutherglfO, Ilobert
* Fleminar of Aui'liinfiu, JoIiq [^amittori feuar
* ID liogepumn, Tbomas Crai^ feuar in Jack-
* touti, John Miller feuiir of Lon^calderwood,
*JohLi Wihon of Hjghflept, Itohert Sloven
* feuar of Newlant), Jobti Stcil of Wmiibltlf
•.John Cochrun of Cragie, James Dykes por-
' tiotier of U alburn J Joliu Carduf feuar in Jack*
* toun/fht^maii Patou at Old-kiik of Camne-
* ihaii» Jobo Whvtlau' of Bolbwel-sbeii, John
* PatersonUiei-e,'John White of Ntwk, Tbo-
•mas Lin of Blairacbiri) Jolm Weddale of
' Chisdale, John Clyde in Kilbride, all in
^ Lanerk sbire ; GiUifrt Al*lewrath of Dom-
* chory, Tlioma** Mac j arrow of Bar, John
* Majarrow of Penjanow, Henry Macjarrow
•of Athalbaiiy, George MVhir of Beoman^
* Henry M'lewnith ol' Auchinflonr, Joho Alex-
* ander of Duiouchry, M'unken son to
* M^uoken in Hilkertotinf Alan Bovvy soti
* to Bowy of Drumley, James Wood in Air,
* Painck* Mulougal of Freugb, Mr. Williain
* and Alexander Gordons of Earistonn, Mr,
* Wiiiiuoj Fenrussrm of Kaitloeb, Dunbar
•younger of Maeliirmoir, John Bellof White-
* side, John Gibson of Aucbincbero, *
* Gibson youESfer of Inglistoun, Gordon
■ of Deodeocb, Grier of Dalj^onar, -■ — -
* Smitb of Kilroach, M*IeHan of Bar-
' rua^ebun, — ^ Gordon of Craigie,
* Lennox of Irelanduun,' ►Gorduntd' Bar-
* barrftOf John Fmvberton of Auchinehrie,
* David M'cullocb son to Ardwell, William
* M bitehead of IVtibbouse, John ^Vdeh of
* Cornley, — — Neilson of Corset' k, Robert
* M'lellan of Barseob, Samuel Miellnn bis
* brother, ^FullnrtounofNetbcrnull, (itorge
'Mackartoey of Blaeket, Gofdon of
•Garrery, Gordon of Koockgray,
* Herron of Little-park, — ^ — Gordon of Holm,
* — « Gonlon of Orerbar, John M*naug^lii of
* Culg-nad. Murdoch, alias laird Murtioch,
' Andrew 8worri in Gallouay, John Miilcolm
* in Uafry, tn Galloway. Which persotii (as
* we uie inlurmed) do not^vithstutidini^ hve and
* reside at or near tbeir dwedin)^ liluees, and^
* by thcmsolveflf or otber&% to tbeir use and be-
* hooff do iiplit), (MissesB, and enjoy tbeir lauds,
* rents Hud goods, as if they were our free and
•peficeaMe subjects, in hi|rb and proud con^
* tempt of U9^ otir authoiity aud lawjs: We
* therefore, wiih advice of our privy counil,
* d<» hereby ^ive aod jf rant fuU power, 4tjthority
^ aod comrnLsfiioa to the sberitfs principal of
•the shires of Lanerk, Air» Dumfries, stevronl
* of the 8te%vartry of Kirkudbri^ht, sir Andrew
* A^new of Lochnae, RheriflT-pniicipulof Wig-
< tonn, aod ibeir deputes, to pass, pui^uc, take,
* npprehend} impri<iOD, aod prei^int to jtisti<:e
* the foresaid rebels and traitors^ w herever they
* CUdi be found in any [>arl of their shire or ju-
M*Qiiliarrie of Scorieholm, John Sleill,
Overwatterbeodj John Whyal, of Neak,-
Muirbead of Breidisbidme, * John H»ddo»e,j|
in Duug^las, Jai^es Whytt ther, Jumes Semple
'riidictloD; ajid, in case of assistance orhostil*'
^ opposition, to pursue them to the dtrath by'
* force of arms, or drive them forth of ihe*1
*• bounds of tiieir shires and Jurisdictions ; and,' J
* if need be, are to call to their assistance sucb'l
*■ numbers of our goud suli|ects, as they shalJCl
* find necessary for their assistance, wfio are'l
' hereby ordained to concur with, lortify and]
' assist our comiuiaionera foresiiid in this our f
* service, as they will be ausuerable at ibcir lit-'
* most peril. And if» in prosecution of the sahf j
* rebels and traitors, any of them iditill lie mu-' j
* tilate or slain by any of our said conmiis- J
* sioners as.sisting' them, we declare that *bey j
* shall never be pursued or called in questioii]
Hberefore., but that the same shall be reputftj
^ and esteemed ^ood and aeecptable service to 1
* us. Given under our signet, at Holy-rood- I
* house, the B day of October, 1681, andof ou/1
* reigu the 33 year. Subscribed ut in Sede-*]
* runt,'* 2 Wodrow, 159.
* Wodrow gives the following accoont
this and some subsequent proceedings a^^ainsll
*' that rehg-ious and worlliy gentleman tb%|
laird of Bradishcdni in the shire of Lanerk/\
from original papers, furnished by the laird^
*' of wbtim,'^ pri^ceeds V\ odrow, ** i woukl sa%
more if his mudesty did not forbid me/'
" James 3Iuirhead of Bradisholm, liad 1
still a countenancer of Pre&byicniio ministers $^
and before the risiug at Bothwel, by scleral
summons and other papers before uie, I fmd
be was brought to much trouble before the
privy council and other courts, and paid
consitlerabic sums of money for bearing the
gospel preachetl by Presbyterian ministers, ilc
was further charged ancf finetl for harbounu;^
Presbyterian ministers in his boose, and be*
cause they prayed in his family, v^ hen f liey
came to visit bim, be Has made gtiilty of a
house conventicle, and underwent several ar*
bitrary tines.
*^ 111 tbeycar 1679, at the rising «t n<»lhwcl,
his hoiiise being within two miles of the place
of engftgenieut, he carried with all the caution
he was capable of, and retiretl from his own
dwcllin^jf for 'several weeks; yet he ivus in-
dicted bel'ore the circuit 1681, as being in the
rebellion, though with on t the least sliadr*w oi
truth. His indictment is in my hands, and
runs in the common fcnni above insert. After
til e examination of a prodigious mimbwr uf wiU
nesi*eH, and nothing being proven, and when he
hud given in a representation against some of
his pursuers for suborning of witnesses, ami
oNered to pix>ve it, the matter was husheil
lip, aail by an onler of cnurt just now be-
fore nil-, all further prosecution of bim was
dischaigid.
^* When he was, a3 he thought, secure^ be is
a^4iu put into tlie poiteous roU, and before
Ǥ1J
^3 CHARLES II. Proceedings agmU the Lanerkshire Men, [3»
maUman in HamiltouD, Jamea Lockhart called
laird l>ockliart, in Hamiltoun, William Fal-
Gooartbei', Anbur Tarbct ther, WilJiuin Polr
lock, siiiitb titer, John Scotta, diler and
this circuit at Glatjg;ow receives a new indict-
ment, which being but short, 1 insert from the
original. * James Muirhead ot* BraJisholm
* voun^cr, you are indicted for the crime of
* high treason and rebellion in joyning with
*tiie rebels June 1679, and beiuff in their
* comjpauy with arms at the SchawLead-muir
' Hamiltoun, Uamiltoun-muir, and sci-eral
*• other places, aiding and assisting them,
« giving and sending out meat to them, or
' otherwise supplying them, sending out
*_ horses and servants to them, counteuanciog
'and favouring of rebels, accessory to the late
* rebellion, harbouring and resetting of them
* in your house, upon the ground of your Wad
*• as tenants, receiving onaii and dut^ from
* them, conversing and iutercommunmg with
* them, particularly you reset and keiit Robert
* Turner in Goodocniil upon your lands, as
' your tenant, and receives mail and duty from
* nim ; for all which crimes you are to uqderiy
« the law.'
**• To say nothing of this informal and ge-
neral libel, when he appeared with other gen-
tlemen he was continued till the 25tb of July
at Edinburgh, where 1 find by a si^ed extract
^'the act of ailjouma) he was liberate from
prison. The act itself, containing his petition,
and a short hint of his strange usage, deserves
a room here.
Ipud Edinburgh, S5 die mensis Jnlii, Curia
legitime affirmata.
' The whilk day anent a petition presented
* to the lords by James Muirhead of Bradisholm
* youD'^cr, shewing. That he beiog formerly
* (1()81,) convened before the suid lords fur bis
' uUedgcd being in the lale rebellion at Botli-
' wel, and exact trial made, and seven hundred
* witnesses or thereby b«.'ing examined ^aimtt
'him, nothing of guilt could bo made appear,
* and ihc i>ctitioner having then ]>re8sed to go
< to triui, and having an act of council for that
* ed'ect, the lords at that time deserted the
* diet siinpliciter, and discharged all new letters
<an(l dittays, except by a warrant in pne-
* sentia : And yet, wilhtiut any such ivarrant,
* he was put in the portcous roll, appeared at
* Glas<T<)w, urged a tri-il, and was continued
* to Edinburgh, where !te offered of new to
' abide a trial, but was committed to prison.
* Tbercl'ore craving, that seeing the petitioner
* hath been so oil troubled, and always appeared
' and h now ready to pass to the knowledge of
' an BUMiAQ for clearing his innocence, and is
* ready presently to exculpate himself by fu-
* mous witnesses, that he be ordained to be set
' at liberty, and the diet deserted simpliciler.
'The lonl justice clerk and cominiHsioners of
' the justiciary, having considered the uud
* peCitiiMi, do ordain the pcliiioner to be set
<alliber*v H^rtcacied forUi of IbQ books of
younger, UdingatouD, James Coras ther» Alta--
ander Corss his sob, James Rae, soa to Joha
Rae, fewer ther, Jolm Wilkie, son to Jmkm
Wilkie, in Know head, John 8oott, in Kcamiir,
' adjournal, by me, Mr. Thomas Gordon dodc
' to the justice court.' Thomjui Guhmm.
" At this time there was no security fiir 9my
body who had ever tavoured PresbylffdaM»
and so, notwithstanding of this soctod ahaolti-
ture by the criminal court, neat year at lll»
circuit be is again put into the porteou*
for the same pretended accession lo Batkw«|;
and when he would not purge himself by takm^
tlie test, he is remitted to Edinbui^gh^ wIhb
be is libelled belbre the council ibr i
verse, keeping conventicles andotker po■^>^
and his oath is taken upon the artkka of tkm
libel. And because in his depoaitioa, he a»-
knowfed^es hia having had four tuMes Pivakj*
terian ministers in bis house sinca the i *
Gonveuticbes, and fined, according to a
account given in of hia valuatwii, as an 1
in fhwr tboumid marks, and waa kept in _
about fourteen montlis at Edinbuivfal AH
this I have ^ven the more disiindly, heoeaae
every |nrt ot it is vouched by principal papsii
before me. And this was the case of e p
maay other worthy gentlemen nmi yea* i
this."
With respect to the great nmnber of viJU
nesses examined, Wodrow says, as aNaie^
" Because tlus may appear strnege le
such as know not the metheifei of Ibis timm%. iC'
would be noticed, thai in tiie year 1681, mmj
more witnesses than 700 were cited in to lU6n-
burgh from the West-country agaiosi tiM
gentlemen then indicted, and they were el
interrogate with respect to each genileman wdie
stood his trial."
It farther appears from Wodrow, Vol. 2« pi
42Q, '* that iu Deceoiber 1684>, a decreet' wee
passed by the cutiucil against Jamea Muirheei
of Bradisholm, and otliera : their libel waa mere
non conlbrmity, and alleadged reset, and OOB*
verse, and refusing the oath of allegiance wkll
the king's iH-erogative annexed, which Hmy
did not reckon themselves obliged in law te
take;*' whereupon tlie couecil fined thesa is
difi*erent sums; Muirhead*s fine was 4,M09
merks. It seems that Muirhead was aAar-
wards imprisoned ; for, Wodrow notes, iiiMlBr
date September 11,1685, that Muirheedi, of
Bradisliolm, was lilierate uMler a bond of 40M
merksto re- enter October 12. Intreotiaff ef
the proceedings of the ciicuit courts, heHl im
difierent parts of the countr}' in the yeav liU^
Wodrow says, tlut the p«Mteous roll Ibr fli^
shire of Air, so lar as he couid guess, wImd km
Iblded it out, '* consists of upwards of SUOahcets
of paper ; that of tlie shire o^' Laaerk is upsv^ids
of 200 sbuets, and noetains the whole gl«tr|iaf
that shire almost witboii4 esoeptioia.V Vet %
PP.31M17.
859) ft*' trwnn.
MmMcM^hk mm, Rolieit Cait^. M^oilsetiflr
in U4<ni;«lrfito, Joliti Oofsr In,
Janrn 11i(»m<oii, ficntinnero: itn
«utl yoovgcr, ia Easter Olemorle, J-olift nuBiiH
0Mlberiiiliiiowe, WiUiwn WmIik*^, portiofivr
of MainhiH, Jamrs Gn; nn*
*■ GrayluKicm, ler
«i€G«niafiliefi| i«mes i^ray, nr n<inpKnow»,
Wftllnr uon^ten, poifMinef, of lUbroiHotiii,
Mr. John Spr t^^' -^ '*'-=rr3tih»Hi» ^ireitter it!
we, J
My , ^. ..,,.. -^
O«iodvii>, rnuJtmttfi,
e, nercliiiH in Cilivs<'f>^^
MMiilivnry , u,.,,.. .W"' i^'i-ylitih*^,
liolMit O«iodvii>. rnuJtmttfi, utuiinir-
r thcis
; nier ai Muilefiiiartifr,
nml portiotier, of Shet -
\nmi\ toylor &D<I fcwar
tber, Ifvi^H Kff, ot Howehousi, Hubert Fley-
tnlfl^, of AucKinrtiK% VV iUiani I'ark, fewiir of
iLMrivkSf Johu IliHi ' tV'warof Kogci^uii)
Thomw V ritig' fc\« tafim , Da^id Linde*
«igf'p«iftioiM»r Uifeixn-., >Miitt MiHar yotniger,
fePM in l.0«£f CntlMnvoad, Jobo Witsou, in
tloclimie, ymwmtt or *
Yoiiii^, of fciltull, Thot^ I
iMer of FioM«n4, James b v<'kf»/ ]torti<«t]^r
Off HtOhame, John Caradiiff/ fis^uir in Sire-
v*ti, JaoKM Huntitton, elder, in Prym-IiiH,
Hticbtrd Maikti^, m Tw«*i4iii«yd, Jutncs
WUInr, ymm^^ of lUlkctbiifn, Tbomai
i%llte««t'fli« olti kirk uf CnmiK-lhRt], John
Clr«y of 0irD^tvi1l, Robert 8ieill, in SUinio,
Mm Wbilkw«, in Oottmrliihetlb, Jnbn Vit-
tfftiMi tbor, WiMiafiii W«iilrop«r, portkincr of
&Mir Ontb«4MMt, Mmi €?tlberli«^ j9\xitf^^
puMiwitr of WMaoeHe^, linb^rt Russ}!}, |iar-
tiMier tbevpf, J<iiii Mtlbr, of Wiittprsbnu^,
Jahn Nbnaioin iW fforih Jr^hu M']r\ tt voiinnnpr,
^fl^ckbrkl >n.
inift Geof^f tii-
bdid Ctmlnml^ ol KmrnohUhiiL Jatii*^ llamiU
too (»t' linUyd, JamcK Ituiu1Ur»n, ol'8c<mphally
Tbarau und JfLincji AktDiinft, nf Mftines, John
IhlMtllih fnwnr in llnfuitifii^ Wflliuft l^k*<,
i«i*LtnT"^ ' .i««rt and Wiibam Cilttmurs,
tf€fti*ii< 'f^^ Al4?xafidci.' MurimVt ^^
IMitouiiiif^ud^ luid l>y«k« Oiiivtn S^inplp, 'pr-
#Qii«r <if KifkwiM>rf^ TboiWfM Brownhr, p<ir-
•f Cfj"*"** '^»?<rnMui In^iier, pArtsoMY of
(•«, of F4«iiiUmiB| J^meai
A. D. 159 1. [954^
giAtoJr, in Eit)(tfT«eai, Joltn WHIiAtmon^
ymmgrr, heritor of the lunds of Hull, «ni|
John WiUiamson« son to Robnt Wi11iiitii»0Dy
«^1ed k>rd of 8botcleiieg^, cQftkAiid roeotiou
thM frerTiotwithstiindiit!^ he fh** cwmmon In fie,
liiwc *' ■ lament of
thiskii irpoi;Tii4
rj^iseiutJ ot Ins liinjcsiit's bu lyre 4s, or any
nutntver of theni) thejoynrng And ossiemhlin^
tmg^itber in armes without and contmir to bttt
mnesties conitnaind, warraiid and ntilhoriti<^^
and the abaitincf, assisting, fecep«inp^, inter*
oommonirjc and keepings correspoui1et*f*e witli
such rcljcll?*^ and supplieing' of ihem wilH
levins of mcHi horse, inouev, armesi and I or*
niKbini^ thtni with roe-at, (frink, powder, hftll,
and other munition bellicalJ, are most deta«tft* |
hie, horrid, by nous and abominable cry ittes of
rebellion^ treason and lese majestie, ftnd &M
punishabJe with f[>rratilitiFe of Kif, lam*
henta^*?* and escheat of tbcr moyaWcsr, and
the third act of the first parliament of *^
James the Rmt, It ii statat and ontatned,
no man oppinlie nor nottoriouslie i
Against the kinij*8 person under the patu.
foHaoltinsf lyflT, land and jcroods : and bt
ibrettie sevinth act of the second pirHiameDl
kffig JAmes the First, it is statnt, that no mi
wilfellic receipt, mantaine, or doe fatonrto
pin or manifest rebella a^inest the king^s m*
I'-Stie or common lawe under the paine of for<
laulfrire ; and be the fourteint act of the U
parliament of king' James the second, tt
stiTnt, thai DO man rebell ftgfaine^ thekin^%'
pe?rs(m or anthorilie, ormakewarc ag^inc&l tji%
king's leidgTSt nod inhoso does to the cod trait
to be pnni^fH «flvr tbo onatitie and qnantttit
of siclire^ ' A be tne twentie fylt act
bia 9ext \< it k fitatut, that if tnyj
iMRi oonmun or nor trisftson a^inesttbe Idngvj
jMieuii, m ryse in featr of wear fifpnneil htnii
or recrpte any that has committed treaaoti,
supphe* tliem in lielp, redd or conocill,
h. niM.cKr-M .ic traiiom ; nnd be tli»* f^iM,
)i act of the twdth | t
*j ..^ _' :. . , tin- sivt. It is V X
wherever any <" f
part of thiM niilii , < j
whall prt'sunie to rece»pl, ftuppUe or itit«r-
Aithl,J(dto \
JliMwdi, po:
^iifcr, |iortiMier of 1
jMMpir, MflfOcMr t
iij^T of Flack.
In Kito('hs\ d
ik,
i>ubt
cnmnfn with ih'rn, or ^^r thrm any tddff of j
■. ■ ' ' ■ '!«<'
tic\ ' 'lilh^eni
in N the Bail
traftr>r% rina rLOcii*J, nnn uku wnu t\iitpcitd\
cfTtttW l(ts miiycBlie, or 9omc of hn
r--' " nrfome |>erf<nia of nnthoritie or <
t he fthjrr, that such rehcn* are wittnttl
t ,. , amUrtht p-.m. fUtti the saidf traitoi^J
fiiHl reltells ought to they if cr i
piehcndit niKl ronvi : I\kLva^bel
,> . ^ ' aIW
h ) c trrastrn t n I he m i l U is k tltf^tloTIIf^l
or any numbrr of ti i or icsae^ npOlt^
wty ground or pretext n httiiwaicicr, to r\^ tfr
cmnt&ue m armes, to mtkt peioe or trirf ^ m
S?551
33 CHAULES IL Proceedinga agaimt the Lanerkihire Mem. [S56
to make any treaties, or leagues with rorrai|rne
princes, or estates, or amongst themselves with-
out bis majestie's speciull authoritic and ap-
probation, first interpoued therto, and all his
roajestie*6 subjects are discbair^red upon any
pretext whatsoroeFer to attempt any of those
thioi^s under the paine of treason ; and be the
elevinth act of the first session of his ma-
jcstie's second parliament, it is statut and or-
dained, that iu tyme comeiugf in all cases of
treasonable rvsuini; in amies, and oppin and
manifest rel)ellion a^uinest the king's majestic,
his h;^ne8 advocat for the tyme may and ought
to insist againest, and nrosecut such persons as
he shall be ordored be iiis majestic or his privie
Gouncill to pcrsewe ; and if they be cite<l ami
doe not appeir, tlic justices, notwitlistanding of
ther absence, may and ought to procee<l to con-
sider and give ther interloqmtor upon the
lybell, and it' it be found relevant to admitt the
same to the knowledge of ane assyse, and upon
the verdict uf the inquest ftnding the same to
be proven, the doom and scntance of tbrfaulture
ought to proceed, and be given and pronunccd
in the same maner as if tuc persons accused
Lad compeireil and wer present ; Nevertheless
it is of veritie, that the saids John Wilson,
Mr. Thomas Pillaas, and the other persons
above-named, and ther associats and accom-
plices, shacking olf all fear of God, conscience
aind sense of duty, aleageance and loyaltie to
the king's majestie, ther suvareigue aufi native
prince, most perfidiousiie and treasouablie pre-
sumed in coid blood, and in the nighttime, upon
the day of Apryll, 16r9, to murder and
kill , a soldier in captain ' com-
pany, and \ei\ another of the saids souldiers ibr
dead, and John Balfour, of Kinloch, David
Hackstone, of Ilathillet, and others, having
upon the third of May, the said year, killed
and murdered his grace James late arch-bishop
of St. Andrews, they to escape jusiice and in-
volve others in ther guilt, went unto the western
shy res, and most treasonabliejoyned in armes,
wth the persoues above named and others, llier
dissolut and flagitious accomplices, under the
command of Hubert Hamilton, brother to the
laird of Prestuun, and upon the twe ntie nyntli
day oi the same moneth of May, a day appoynt-
ed for a solcmnc thanksgiving fur his majesties
restauratiDU to the royall government of this
kingdoinc, did goe to the burgheof Uuthcrglen,
and tiicr most proudlic and treasonablio, hav-
ing read acts of ther own coyning, they most
treasonablie and wickedlie burnt several acts of
parliament asserting his majestie's preroga-
tives, and establishing the government of the
churclif drowned out bonefyi'cs sett on incom-
uiemoration of that day, and therafter they
and ther reliellious associates, to the number of
fyveor sex hundreth, did wayUy a small and
lewe number of men under the command of
the laird of Claverhouse, and did most treasona-
blie and cruellie kill and murder some of his
majestic's souldiers under his command ; Ly-
keas upon day of June iberailer, they did
i00 ablic attact^ueandaimultasmall
paitie of his majesties forces within tbe toun of
Glasgowe, under the command of the lorl
Rosse and laird of Claverhouse, be whose pru-
dence and government these oppin, nottar and
manifest rebells wer repulsed ; and yet being
incouraged with promises of levies of iheOy
horse, money and armes, from others of ther
treasonable accomplices, they did swell and
growe to the number often or twelve thousaudy
and they, and the persons above named, march-
ed up and down tlie countrey, throwe the
sliyres of Lanerk, Aire, Itenfrewe, Dumbftrlon
and others, in warhke and -military powster,
robbing and pillageing his majestie's good sub-
jects, searchmg tor horse, armes, powder, ball,
and other instruments of warr, ^uarterin^ upon
and oppressing his majestie's leidges and peo-
ple, and they and their accomplices did main •
taine, supplie, comfort and defend Mr. John
Welsh, Mr. Samuel Arnot, and other fbrfault-
ed and declaired rebells for the rebellion 1666,
did supplie, shelter, and protect the impious,
horrid, and sacraletlgious murderers of.tbe lats
archbishop of St. Androvs, and they and ther
accomplices, to the number of nyn or ten thou-
sand, march towards Bothwell-bridge and
Hamiltoun-muire, where they did take the boM-
nes to issue proclamations and print declara-
tions bearing the treasonable grounds of ther re-
bellion, and not content therwith, they and ther
rebellious accomplices presumed to modellthem-
selves and take the name of ane army, formeing
and framing themselves in troups, companys
and regiments, nameingcoUonells ot'regiments,
captaines of companys, commanders of troups,
and other officers, under the command of tlie
said liobert Ilamiitoun, John Balfour, of Kin-
loch, the deceast Daviil Hackston of Ratbilet,
and others, the impious and bloodie murderen
ofthc late arch -bishop of St. Andrews and they
and ther accoraplices did incamp themselyes at
Hamilton-Muir for sc vera II dayes togitber in
June 1(379, ami obstinatiie contmued in amwi^
makeing detachments for rifleing and plunder-
ing of the comitrey to make provision for ther
rebellious camp, and notwithstanding of ane
proclamation issued furth by our privie coun-
cil I (Icchiiring the sM insurrection to be ane
horrid and manifc'st rel^ellion and bye treason,
and commanding these rebells to desist and lay
doun ther rebellious amies, yet they did most
treasonablie continue and abyd in armes. ifid
beat parlies he drum, and diJ take the boldnes
and pr^un)ption to send ther commissioners to
our royal camp, and treasonablie did requ^rs
the subversion and overturning of the gt>?em-
ment of the church ; pi-oudhe and insolentlia
boasting of ther trenMuiahle and (as ther oom-
missioners wer pleased to call thein) formidaUa
armes, in which thry mo^t treasonablie con-
tinued unlill the twoniio second day of tbe sM
moneth of June 1679; that his ma'ties finwis
did attactque and assault them at Bothwel-
bridge, wIut by (lod's blissing on his matiea
armes and be the valour and conduct of Jamca
duke of Bucclciigh and Monmouth, his m^jealiii
gcnerall, and omccrs and souldiers under him,
\
k
4lier ouxDcroys and risb«lilou» ami^ wu^^I'-^t'-^^
^ pouted uud vaoqitishcd, uiitl yvi {\n
4<bove tiatiieti 111 villi' Hi>(l i\iivl itiaiJe tilt L __ , ,
they uiid \l iirul liaeraiegious inur-
dtrera ot lit' u hi^liniMiJ' Sl Andrews^
Oiarclied in ]tt&rtie^ and io ' uvvslt^r Up
mid doMQ tltti eotiiitreyf in u uf l>uni>
fiivsy V\ iafto'jiJ, Aire, and SttwaiUiL' of Khk-
€udhrj;7hr, f^nwrt* riT»*»^ iipno ttfut opprt'HHMiiT ||i$
ri ilier
^ ond
iifcV ot June i.Lst, i: * jist Mr,
Kitcliard Cumeroti, li atidcoti-
1^.1: '"--'^ ^ ■. and
ie and denunce
>^^ : sorTt under or
ycalti ^ and dill iiiohI trea-
sotiahlo iilrive and dUperse,
a HKjst trcaionablc paper cattod ^^ the F^inna^
licks Nuvke t-ovenanl ;'* v^hicli was tukeo
from Mr. Donald Cat^dl, at Uuiiiiisteiiic^ and
is nowf* printnl and pMMisUcd, aiid heretA
hotdrti ail r^-pei led » Rill ^ ^cat
at t lie trii'aiiouahle atiil icu-
fjon uiiCid be Wr, Donaiu i argiii, iii ion wood^
ii|H)ti ilj« day of last, a^^satuect the
li»t ' "^ - ' ■"■''- '- ' - n the
d ^unaiueii
,A3i »..»..v| -^ sidtft
Mir lie* forces ^se,
•Mil I . ailit-lajrd 0 _ _:iLill,
did tieji^lu, resist and oppQi^tKetn, kiiled and
woundii seireral o( thcm» uDlili at kji^ih \hty
w«r diwsipat and dt fate, the s*d Mr* Uitcbard
Cameron bcnng' kU<id upun tbe p^ace, and
i>avid Hacksloun id' tUMnletf and otbers, taken
pnaonemt In ducinj^ wlieral or ane or olber ol'
the a-ds dtedi^i the saidei John Wilsoo^ Mr.
ThoDias Fdlaus, and. tiw other persona abov««^
Otnied, have c^intuUttd and inciirred the
crymea and paine of trrusoa aUivt? mentioned,
Dttd tre actors, aiit «nd part M -^ ' -i -^
l»einfir found be ane ii&MyHc, ibr\
punixbed with brfauJtui ot'lytJ', 1,^:,., , ^ - ..o^
10 ibe t«?rrDr of otheii» to couiiuitt the like her-
cfUr,
Pcnewer, — Sir Gmtge M*Kenzte of Hose-
tiauffh otir sovcratgu lord's advocat.
War rand /or Advocat § io compcirjbr the JJt-
fendrru
Thf 1— * • '- '- -" Justice Clfi^
and C did aiitli'
and ia., ... ,,, Lri» Mr. >; , -
Hun BaiLidlouiJ. and ^1 ^Miiiaie, ad-
VOCata, to cittiKM Mr ;a]m! iuitorr itri>> uf
inch of th<
aball coiuiMrii
for treason aiid rcbeUiou at tbi« dyrt.
ReUls declared Fugititti,
Tbemtid day Jolm Wilson, wrcitter in La-
nerk^ l^lr.T le,
lirrriuer tbt^i .i ^ . . .. u.i^ld
VOL. XL
Si .^^c-ir, ther* Thomas LauL'hIun iHcr, Wdliam
1, ^eavur lher» fiidroii VVtlr, "june*
ljei\ James Park, wtfiivcr tliei\ John
humpte, mason ther, Hiiji^h Ker, ;ion lo W illiain
Ker^ in B^rooald, Ttiomas In^lis, ^lineinaker
iti l«anarkf Itobert Haddowc ther, John
Buckle, younger, mason and uvight thm%
Alexander Balyie, >jniilii Iher, Altxander An*
dtrson tber, Joba Puitipbray ther^ Thomai
HhiMC'Uvood ther, John Jack, to Nt-mplder,
WiLJiDni Pudzeaii iher, Hugh SomervaiK of
Urrats, John Hntcheson, of Harelawe, Uo*
bert 8onierv(iillf of Vairdhotise^ Luke Grein^
sbills, of lio^^casUe, Robert LocklinrU of
Btrkiidlf Gavin Hamilton, of Hi IK Jnmes
>Veir, ofJohnshill, Jame?i vr'^^fl^ »« • > -^* s- o-
rieholiiie, John Steiil in < n
Whytt, of Neiik, John ll , . i^ i^ us,
JuidW V\ hytt ther, Wdliam Fateouer in Ha*
milton, Arthnr Tarbet ther, John Scott,
younger, in Udini^stouu, James Canie, in Ud>
In^Moii, Alexander Coc^, his son, Jumea
H^f^'f son to John iiae, fevvsir tlier, John Wit*
kie, son to John VVilkie, in KnoivhvafI, John
Scoir, son to John Scott, in Kenmnir, liobert
Coisc, wadsetter in Udingston, John Thomson,
son to James Thomson, portioner of Gam-
quein, George Roberrson, eldar and younger,
of Kaster Glenlore^ John Kussill, of Eastfeild,
Gavin Weatherspoon, i'ewar. In Heather-
knowc*, James Gray, elder, of Chrystoud,
John Easton, port! oner of fiarnquein, James
Gray, of Berrieknowe, Walter Donahlson, por-
tion it of RalHestoiin, Mr. John 8preuU, wreit*'
er ii! Glasgfowe, Gadn Wood^ wriirht Iher,
Robert Goodwin, mahman ther» Jaijies f -un-
iti^hani, mcrchnnd ther, Isack litackiveli,
son to Thomas Blackweil, calendar thrr^
John GoTan, portioner of Shetlestfiun, Wiiltam
Ridilell, fewar and mason in Rii(btreleti«
John Brown, t ay J or and fewar tht*r^ Uu^i
Kcr, *#f Boi^liouse, Robert Fk\ .f
Auchinfiae, William Park, fevfai j,
I t.. ij-,^,jj^^j^^ fewar of Rocertouti, i iimnas
var of Jatkloon, John Millar^ yoting"-
ran, ot Craijf, John
' .. : litippeii, ThoHMi^ Le-
per, pomoner of FeiUIUead, Jatnes Dykm,
portioner of Halbume, Johti Carodnrt', fewar
lU Straven, Ritbard Meikle, in Tweihesyd,
Thomas Palton, at the Old Kirkof Cnnibu^ne-
. John Ciray, of Darngafill, It
ain, John Whitlawe, in Rotli
J<tiH> Paterson, ther, VVilham War<hoi>it , |M»r* j
lioour iif Eaater Calderliead, John Catberhead^J
'ii^'er, portioner of W indie- tdge, John
:t, younger, of Stockbridjfcs, Tltonjai
*..;.v^ of Blairrcckonin^, William Dykes, of
I.*aiiibhill» Gavin Stuiple, portioner of Kirk-
wootl, Thoina« Bro^valie, |M»rtioiier otTuritsl^.i
James Aikenhead, in Kittocbayd* Ja
Dykes ther, John Grainger, of Fla
J^i'kn Watt, ther, John Weir ^f Strang
ThotoM Uobeiisou, portiObar ot ilu
859]
53 CHARLES II. ProceetUngi ggmmd the Lanerkskire Men, [SGO
Joho Haddodr, in fiMteraeil, bcnig «ftjiiMli
called to liaTe eompeired befor the Lonia oom-
niissioiim of jiiMioku-y tbia day and placi>, in
the hour of cante to haf e undarlycn the lawa
for the crvmca of hye treason and rebdiion,
comniitteff be them in comimif ^ ^ burghe
of Ruthergien, upon the twentieftynth day of
May, 1679. and proclaimiBgr «cta of tberown
coyoibg at the maroatcrocetbefof, and drown-
int^ out bouefirea, aett on in commemoration
of hia majestie** bappie rcatauration to the
royal government of this kingdom, asaaoltin^
and attactquinir a pertie of his majeatie's forces
at Loudounhil), under the command of the
Jaird of ClaTerhouae, Iciilinfir and murdering
eererall of his majesties souMiera then march-
tngr to thebar^h of Otasgovre, and atUcoiieing
a partie of his majestie's forces within the
same, under the compnand of the lord Rosse
and laird of Claverhousc, marchiilg up and
doun the country with the murderers of the
late archbishop of 8t. Andrews, and others
ther accomplices, to the number of nyn or ten
thousand, quarterin^^ upon and oppressing his
majestio's good leiges and people, robbing and
rifieing ther goods and houses, publishing and
]irinting the treasonable grounds of ther rebel-
lion, beating parlies be drums, sending ther
commissioners to the royal camp, treasonably
requireing the subversion of the government of
the Church, resistiog feighting and oppose-
ing his majestie's forces at Bothwelbridge,
nnder the command of the duke of Buccleugh
and Monmouth,* untill the saids rebells were
* Of the procedure of Monmouth against
the Scots insurgents, Algernon Sidney in sue*
cessivc letters writes thus :
** No man doubts of the truth of the news
brougrht hither by an cxnrcss on Saturday
morning ; which is, that the conventicle- men
hi the county of Glasgow are in arms ; that
one captain Grimes coming something t(K>
near them, with his troop ana other forces, was
beaten back, with the loss of his comet and
Iburteen troopers; which according to the
posture he found them in, he was persuaded to
content hiniKelf with, rather than to press -far-
dier. Tlif*. council was called upon this oc-
casion on Saturday last, but nothing (as 1 hear)
resolved until they hear more, some doubling
whether it he a laid business, or a snddcft
tumult raised by accident. 1 know not the
truth of this, but the discem^es I have heard
▼ery often of late, of those who every day ex-
pected some such thin^, persuades me to be-
tieve it is not fallen out by chance. Thouvb
no resohirion wna taken at council npon this
matter, it is said, that private onlers are given
fHit to several officers of the late disbimded
troops, to get their men again together ; and
to others, upon the roosi plausible pretences
that they can invent, to delay their disbanding
These ampicions go too
h some of your friends
i degree, that eomnellortare
■ tebe^BDged than ooiuali; and
ft
defate, and eommittingditaevenllctlier aoli
and deeds of bye treason and rebcUioB, at
leiiffth mentioned in the criminal lelteni raMI
at nis Majestio's advocate instance against
•nai iney can mveni, io
M mud as may be. 1
Ihr, and already reach
and BUM, toauch a dcgi
if they do not find a way to core that aoie, at
the next meeting of pariiament, they will he
looked on as their predecesaors. If nothing
from Seotlaod hinden, the oonrt will go te
Windsor to-morrow.*'
** The Scotch news that I mentioned te jon
last week, doth still possess the minds of all
men here ; but all relations that come from
Scotland arc so impel feet, that no man knowa
what to make of tnem ; and those that cooM
to court being more particularly so than otherir,
no men are thought to understand less of A#
business than privy counsellors. This is at-
triboied to Latnenkile ; and thoogh it be ooa*
clude<l, that what he says is not true, eome
think the business i^orse, others better, than it
is represented. The fact, as far as I hear, is^
that the earl of Lithco with above five, and
twenty hundred horse and foot did come withiB
a few miles of the conventicle- men, and find-
ing them in such a posture, as he did not think
it prudent to chaige them, he concluded the
best was to let thciu take Glasgow, where they
are said to have found good store of arms, am-
munition and some cannon, and having left ao
many men in the town as are thought sufficient
to guard it, they march with four pieces. Tliej
are said to encrease in number every day, hm
we know nothing of them certainly, unlen it
be that they have no landed men amongfll
tliem, nor any gentlemen, but a younger bro<-
ther to a knight of the Hamilton family. The
last week we heard of nothing but raising ef
great forces to subdue these rebels. The doketf
of Monmouth, Albemarle, and lord Ganel
were to have regiments of horse, Feversbam
one of dragoons and grenadiers, the lord
Cavendish, GreyofWerk, Mr. T. Thynne, and
some others, regiments of foot ; but thM bent
seems to be something abated. The lord Gr^
gave up his commission, Mr. Thynne refhaei
to take any ; Cavendisli doth not raise anj
men upon his, and Garret swcaiii he will net
be at a penny charge to raise a man, but if the
commissioners for the treasury >vill raise lua
a regiment, and provide money to pay it, be
will command it. W hilst ways were sought 6
remove these difficulties, the Scotch lords that
are hereeudoavom-eHto pei'suadethem that the
business may be euded by far more ccrlun and
leas chargeable vays, in a^ much as these mca
having been driven into a necessity of takinj|
arms, oy the extreme prcs&iire suffered fnua
those that did aburo the aiithcrily his majeatV
had trusted t!iem with, the people being eaana
of those burthc'ns, the pLTSons removed tlial
had caused t]u:ri!, 9w\ sacli men placed *iA
the goveniment, as wjie rxcq>tabic to thn
nation, th^?y durst undertake rliat all mi^
be composed without blooil. This was not
(as I hear) disliked, but auotbet* point wttk-
alaited, that doth yet more incliac the eoart1§
iheiQf ihfir anmt as ihey tvho wf^r iawfuUie | thor ^p|>(.i
filed be CI«org« O^Llhie, Albany lierauiilt hy \ mn\ \iW\
•OOod of trit'T*" "♦ ^*.'iih ilr^pluyetl coat, nr--' i.... -i,.,
•liicr ■ohnuL >^it to havi.^ touwJ cair
■nd soverlit; *i..v» *.. J.^ books of adjourna
mild coime* i wluoh la in the year lAll act*
at' p4irliajiie&t were made tn botli kint^^iiomt,
MHcing ittrcttaop fov iny pei'soo beioa^iog
unto ^ther to make wnr upoa or iiivude liie
<»ibert wiUiout I lie cotiiteut f»f pariiatneuU
And ihovigh Qoe or two of tkr judges aay,
tbfti tlia acU bring rccipruciti, ihe 8coIb
httving resotiided lUrirfl, outs f /' > ' T
«r thougb il did qcH, Uie act
invasian, no vi^ays louclielh suco i^ irv ^^^c
llJttg's command tdiould li^o to subdiit^ rebels ;
iAben my, that whut the Beats did niighl
Ui4eid gtre unto the parliutuent of £n^laDd
ft juil jB^rouod (t( aiiouiini)< iheir act aJ^o, but
not having done tt^ no intin can doubt but U.
pemajiis in force ; and wJiosoever marchetb
•gaiuBl ScotUnii incurs tite penalti^ of treg-
flon denounced tiv it. And home that were
pretent i>t tbe nrnkiii^ iif il, are so far froin
approving tb« distin^iosi lMwt«a invadiu;;^ ^uid
subduing rebeia at to nay, thai ibc parliament
Ibexi fmdingtliey bad l^en upon the like pre-
tcnoe eagi^ped against Hootliind in 16^8 and
3tf, madetbiiftslttpicsaly to binder any sueb
bqaJBgaa ii lliat vhioli tn im>w dept^odin^f ; tmd
lo lake oarti that England ibonld urvur be
tgiiB engaged againat fikotland, without the
tfiomt of the parUaaiflQt; wbich was also tht!
niflMiwtiy the act was eooliJiQed in ioYce on
our aide, tliougli it was divoWed ou tbeit^.
Thia rendeiw men of eatAtaa uawiUiag to en-
gage j aad hereupoa the duke oi^ Muomoutli
wai a^ai aaray yeaterday in isueh hasle, aa to
carry no more eompony with biin, tbau could
go in MM day te your good town of Newark^
wbcrabewaa to lodge the last nigbt Heia
lumished with powers of indutffenca lo com-
poae rather than destroy ; and the lord Mel-
via (wbo ifi thought well enough inclined
to non^^eoal^riiiiats, and well bkod by tbem)
ia aent with btmt as being thought a fit
miptMiir of a good agreement. Tiw? fou>i that
¥fw» caaberked in Ihe Ttiarues is gone i*tt lu*r-
wick, where it ia Ut Ktay to serurt) the ton n«
and tho other fore<«, thatare uewly efltertai|ied|
are to continue only lor a mouth. This iooki
as if your frit^tid Laiherdale may within a
while bt:lel\ aaindted as the carl of Danby.
HiAsaiDir is almost every where dishanded,
oniastlue these that ufion this ooossion iu«
agsin takoi into pay, and the enuniries almost
every whme express Ihe u^aost haired lyala
theoi, as soon ns ihejr have laid down their
aroBSi. IlotiglBfl*s rsgimenl now iu Ireland^ as
ia said* hath ordfta to maidi inl» bcotlaud«
which giving {leopli! nonsioii l«» lalik of ibai
country. they say that the king hating lately
plaisad me gfaalesl powem ia Uie tbr<ie kingf
deess in the hands ii' tk» three worst men that
eould be tutiud in tlieia, can oever he 11 laisa
oatii Ihey arc nil sacritiocdf la sjcpiale Ihe
TMr Ihe saidt IorJt*t?^F^
r of cause» to il
• I fir nou of Uiem
.w-,-u.... i, Ueuemll^ Justice
faults of the jcroverament, and appease tlie dts^
conteutii of the nation.
'* I told you in my last, that tlie duke of
Han'' : gone towards 8cotbtid, since
wbn :, , i»rt« bare been so various, thai
no nvMi ^^ t'A kimwff what to make of llml bust-
nesfi ; luid the ca use of t hi !3 uncertainly is impute
': ' i thekinM'*so^ersi,who iir
k'tisrs directed unto person
1
lh•^n they think
here '"> ^«t>»i
btou:
thcTi
with
that o V
. and as much honour, as ttio^e
> I ould shew unlo hint ; that the
oouiKnl lia%aii;beenimj|ie(liaiely calieil, be ex«
posed unto litem bis oomtuinaion, which was
very well Itkud ; that the chancellor invited
him Ut supper thai niglit, snd that he was the
next morning to go to the srmy» having tirsl
sent an express 19 the lord litfico, that com*
[nauds it^ no ways to engage in any action
before he corpes. Soqae tJiutik that be both
the convontiri^-iueD at an advantsge, and will
pursue it to their destrucljou. Others fiay»
that u[M»n the extreme avemon that is !ihe%vn hU
over England to a war in Scotland » and tho
tittle prub;ibilil) yet ^ippei&ring of the pai JijL% ,
meat's being atiy ways ^gMgeshle in it,
hath reoeiveil much miirt^ k;cutle instruction^
and tnttuds by the li lard Mrlvin, 1
compose thoiie basin • cau ; ^md If
can accomplish it, w i ' \ rondrr hiiu^elf
very popular iu Kng! c(>tland.'"
** The duk^ ll^iuiUuu and sooie other
Scotch lords having let his majesty know that
the disorders in Scotland proceeded only front
the ejttieine presiiuri^^ the people were brou^hl
under, by ih^^e who, contrary to law» abuseil
tike (>Quer his maji>vty had trusted them with,
did undtrtake to hutkik uU without bh^"^ 'i <'i>|
would be pleaiied Ut eas^* them of i
&urt*8, and, retuobing those who hviu v,.,,^,4J
them, put the goveruuieut ol th# kingdom inl(_
Uie hsuds of such pcrfions as w^e w^llf
t^lstksing unto the nation. This having b<i^
taken imo consideraiion for eouic days, tli,
duke HumihiHi witli llm re^* «ml one l./ockr
hart, were se^it for by the kiogi whoto^d th«;iiif
the points fortuerly spoken of did irlaio uuti
his prerogative, which in thrre points he wuuL
nolsuirerto bt^ ttiuchcd '. l«l. Thai 1 '
a right of disposmg of all placcri^, in
^kscitaie such peiiM>ns aa he should uiiim
2dty, That it belonging to him to prrvt^ul
conspiracies, he might bectn^^ im'I •<■
aim sus^teid persons ; and (h
au^h thing us a Habeas Corpus r i
shpiiM he AS long as he lived t
biiog hii j[4ut iu pmvcut ur to
S6S]
S3 CHARLES II. Proceedings ag^mt ike lunurkshire Men, [2G4
Clerk, and Comnaissioners of Justiciary ther-
for, be tlie moulh of James HearysoD, macer
of court, decerned and adjudged them, and ilk
«ne of them to be outlaw a and fugitives free
he might raise such forces as lie pleased,
quarter them where he thought iit, and em-
ploy them as occasion should require. To
ivhich Lockhart replied, that the places in
question were those belonging to counties and
corporations, which had ever been chosen by
the people respectively according to their
charters. And as to what concerns conspi-
racies and rebellions, he thought he could
prove, that what his majesty did assert did
neither agree with the laws of Scotland, nor
any other law, nor the ends for which that,
or any other government was constituted.
*' The next point in discourse was concern-
ing some articles exhibited against Latherdale ;
in which it is said, that'* his majesty for se-
veral years passed had been utterly misin-
fomieil, and never known the truth of any
thin;;: relating nnto Scotland, hut been guided
by such reports as best suited with Lathcr-
ilale's interests." That he had been thereby
induced to bring down the last year that army
of barliarous highlanders, upon pretence (»f mu-
tinous and seditious field-conventicles ; whereas
such meetings as had been, were modest and
quiet ; and quartered them in those countries
where there never bad been any at all. Se-
veral other misdemeanors are said to be men-
tioned, and amongst others tbot of Michell, who
liad been put to death atler having had a pro-
mise of h'te and limb, by false oaths made by
Latherdale and some others of the privy coun-
cil. The conclusion was, the kiiicf commanded
the duke, that these articles should not be made
|fublic. In which he excused himself, foras-
much as having done nothing in the dark,
several copies had been taken, which were
not in his power. Some say, we shall this day
see them in print, with the declaration of the
<:oiivcnticle-mcn, printed at Glasgow, which
is very well worth seeing. The forces of
these conventicle -men, or as they call thcm-
selvesjthc western army, are variously reported.
Bofiiesay, they havo 14,000 or 15,000 men ;
others, that this day was a sennight they had,
not far from Sterling, between two and three
thousand horse, well armed and mounted,
with about the like number of foot ; that a
brother of the earl of Galloway was coming to
them, and within three hours march, with
above four hundred horse and foot, and that
they had parties oi* good strength in several
other places. *'
" A Courierarrivcdthe last night from Scot-
land, who brings word, that the duke of Mon-
mouth had attacked the conventicle-men, and
easily forcing a little barricado thry had made
to defend a bridge, had utterly defeated them.
Some letters say, two thousand are killed lipoo
tiM place ; but ny lord Sunderland tells me
4liere is only some hundreds slain, many taken,
#sd ilia whole party dissipated and .destroyed ;
his majcstie's lawes, and ordained them to be
putt to his highnes home, all ther movable
goods and gear to be escheat and inbrought tar
our soveraigne lord's use for ther contemptioo
bv which means it is said, that the duke of
Alonmouth will have made himself as popular
in England and Scotland as the duke of York.
Men here will be startled at present, but that
will not hold. The Scotch lords here have
been so wise as to leave their countrymen to be
cut in pieces, but (as some believe) not enough
to keep themselves so free from corresponding
with tliem, as not to leave that, which being
well followed may bring their heads to the
block."
** The news concerning the Scots, mentiooed
in my last, is oon6rmed by several exprenee,
and all shew their defeat to have been entire,
the party dissipated, and tlioce who escaped the
fury of the sword remain exposed to the dis-
cretion of their conquerors. 1 iind men's judg-
ments as various, as to the nse which will be
made of this advantage, as of the dnke of
Monmouth's action in what is passed. Some
did tliink that they being a poor people, brought
into despair by tiie most violent peraecutiOD,
Eitied by all both in England and Scotland,
clped by none, without head or conduclff wers
to be spared ; and that in doing so, he might
have made himself very popular in both king-
doms, (which he is thought with reason muoh
to desire) and best to have provided for the
king's interest. Others, who look upon it as a
fine thing to kill a great many men, and believe
monarchies arc b^ kept up by terror, extol
the action, and say tliere is no other way of
suppressing oM rebellions, or preventing- new
ones, than by force and rigour ; looking upon
Caligula as a great statesman, and odfrint dwm
metuant as a good maxim. Some think tint
the duke of Monnioiitirs first instructions were
according to the first of these ways, hut that he
\\as followed by others, which savoured muoh
of the second ; those that were of tlie first opi«
niou, do now think the best way were to com-
pose tiling there, and by shewing indulgcooe
not only in sparing those that are oboozMMn,
but in giving them such indulgence in mattcn
of c<>n!«cience, as may satisfy them, prevent die
like, and please the iKnly ofthe Enttiish nr'^~~
which hath given many tokens of being l
concerned for tiiem. On the other side, 1
are not wanting who think the best way to
bring that stubborn people into /subjection, and
keep them, as they call it, in peace, free fran
rebellions, is lo use the utmost rigour upiB
those that are in their power, and to diseaver
who did in any measure assist or abet tben ;
and in order tirereiinto the prisoners ar& used
most cruelly, and it is said, that at the loask
forty of the most noted men amongst ^theat
shall be put into the bouts my lord of Latherdale
hath brought into fashion, to make them dis-
cover what correspondence the great bmo
held with them. 1 know not how & thia may
coooeni some tbat are, or ktely hare I
«ei5!
«TV(J iljsr* - '- "^-^^ wliicU WM prrmuncrd for
tkoui. L*o1luck, Kuiilht ui Hnmilton,
JoUo Al.i,.. , , ... iiVaursliuui^li; ilixMn Hamil-
ton, of Meadowcs ^It'iiii fit ay, son to James
Omy 4l<iei\ i»f CUry^Uiiin ; iuh\ John HprciiU,
BfijitUh^cnry it» (iliistr«^v<?, "wiio are c«»utairved
in tlic- lybt-fl, WW r»i»l t'H^*ii, tl^e said Juhn Grny
was allijudged ti» bo di'itd, atid Johit Sjjreull bi^-
^u^ a (iristitif 1', was continued till tlie eexl oi'
iuoe.
Dyet coutinu(!(i till the 17tU tDsl.
17M jUarcA. lOBl.
The Wlid day rompeii'ed G«irjfe Og:ilhie,
Albany hrratild ; John Uoodiiib», Robert Lee-
kie, WiHiiiiii Rcid, John ScoU, and James
Smith, wiiiit^^^'s, ihHTl in his execution, und
made fhith uf»on the triilh and teritit* oflhe
r^.'. iiii.iM oil.. 1, if) !.^riiii.i>,t the rebdl heritors
ilk ts.
1 ik instruments ufiOQ
produelum aud venticauun of the executions,
and thai the letti?rs %ver exccut aifaiuesl ihu de-
fenders at the marcat crocc of Edinhurj^h peir,
iuid «hore of Leith, u|Km thri^Kcurcdavei warn-
ings and at thcr d%velhng-hotsbeSf and th^ mar-
cat cros<*s of tiie headburi^hs of the shyie,
hut it is urobahle enougli they may have the
fortune that ordinarily nccompaniex thifni that
prelendiu;;^ Uylni very Bubtilu und keep well with
both KidcA, eier to do Uwi riiuch or tiio little ;
aiid that whereas they might have prevented
fill tntnitlts, if i\wy had codeavourcd it, by
deiiyiog" all manner of favour to the diseon-
t<^nted people ; or reformed the state of that
Itingdom, if they would have taken the cod^
duct of tlieni, and very well provided for their
ovvn intenst by either way, raay have ruiued
these p«>or people by stirripi; them up, and
leaving them to ihemsclves ; brought tlie whole
tiaiioD under the poiver of tbcir enemy^ and
given such advantages arraitist themielves, as
may be their ruin, if they are pun»ue<l ; that
iSf to perish or be saved by the mert-y of him
they [irtite«» to abhor, Iluke Hamilton com-
plains he is ruined hy thi.^ business, and that
not only all the prtivisions of victuals and
corn and crnuis upon tlie g^round is destroyed,
hut that there is not a cow, one horse or sheep
leH ujkon liis whole estate; and hijs own house
had been plundered, if the duke of Montuoiilh
hail not sent an o^ieer to pretierve it. But
Xallierdih; aayt » he cannot U lieve that Hamil-
ioit*t fHcndai tenants, and servants, would so
fat forget their depetidenfe, oUliguiiouii and
MkI oianueTs^ u to deal uncivdly wiih him.
dlewailric, regal itie and other jurisdictmu whcr «
they live, upon Jbnrlie dayes by a heraul(t'
with dis)»fayed coat of urines una by ^und uf ]
(rmnpet, having :ind aifixjno' at the saids i^.
BipeiUive places lull doubles of the letters, won
be word, with lists of the haill assyscrs and
witnt^ses names lo be adduced againest the de«,
J'enderSf and uiteiog the other solemoiliei» re<^.
quisit.
Mr. David Thorit^ fo? Gavin Hamilton, of
Hill, ane of the defenders mentioned in the!
criminall letters raised a^'t the rebell heritor^.]
in Lanerkshyre, alleadifcs, that he cj*nnot b^
d eel aired fugitive ujion theexeculion producefL
because being pn">oner within the Tolbtjiib i
Edinburgh* and for fourlie dayes betbr hi||
ou;^ht to have bein cited at the Tolbuith an '
perionallie.
1. Takes instruments upon the executtOQg
which bears only dwelling house in generall^ana
upon the lierauld executer his judjciall rlcclitra-^
Liofk, that be did cite him only at hts duellini*^
house of Hill, and it is denyed, thai lb f sail
Gavin or his faiiiilie lived ther the tyme of lb
citation, but that then and for a verie lonsidf
rablc tyme befor bis wylf and familie lived i
8traven, which is offered to be proven.
Jmh a« arr.
itiuil a'; -
the ill
» those w ho Jnanaye hu»i-
^^itively of them, but 1
• rid my jiidernienl, until
lit cotne% hark, which is
expert
** It
tnuk.
»u ihd not know what to
-'t^in.ijit belbre you had
^ou weroas much
you understand that which I am ignorant of ;
and to say the truth, I am so ; a ^reat part of
our mO(iem prudence heini; to suppress in-
formations of the truth, which I take to be as
f:reat a point of subtility as that of one of our
friends^ who €0i3cealed'a ujisfortune befallen
him in the first acquaintance be had with a
woman, until he was Uke to fnll into pieces.
Some thiuk the great lords will be found to
have incited the poor people, aad then endea-
voured to value themselvi^s at coart upon the
power they had of appeasing them ; and if
that prove true, they may have the fortune
that ordinarily accompanies those that do too
much or too Tittle, and ray lord Laiherdale*s
boots will be o powerful means of di covering
whether this be so or no.'*
** The duke of Monmouth, before he canoe
from Scotland, had taken care that the Scotch
prisoners should be used with more humanity
than they found amongvt their (^^untrymeo,
and »inc4^, hi^ arriv al here, orders are sent to
cnlat^e the indulj^cnce granU^d unto the non-
conformists in their tneeiinjLf<j. The result of
(hat business, as far as I understand it, is, a
great many fools have hern killed ; tlieir blood
uef upon Lathcrdafc ; their folly and the
cruelty shewed iitito thein hath guineda preat
dedl of rompasMon for those that remain of
their party, which prol>ably will persuade those
in auluoriiy here to proceed more gently | and
that which is rea!.onable in iuelf, will be ren-
derfd alisolutely noceasary, if the parlianietit
be tiufieied tu Hit ; for unless they prot e to bf
of a temper very ditfereot from what is ejc-
pccteil, they will suffer uotbing tike unto d»ai
which hath beya,''
967] 53 CHARLES II. Procudingi agmmH th Lgnerkikire Men, [fGB
Tf>cai* beiD^ warrandit by the lords of his
majestie's pnvie counciil or thcsaorie to per*
■ewe tlie iMmnaUs, he is not obleiilffed to cud«
deaceofl upon ane informer, and mod that he
* Mr. Hume, in different parts of bis Coin-
mentariss, treats copiously of the powers and
duties of the king's adfocate. The l61lowip§^
pa8sa|re will furnish some insight into tbe His-
tory of the proceedin<^8 of that officer as publie
accuser.
*' Let us now attend to the circumstances of
a prosecution at instance of the lord AdTOcate,
the public accuser, who insists in the name of
the king, and for his majesty'a interest w the
execution of his laws, and in the tranoiiiUitT
and wiiUare of his people. This office, tLougtt
it probably existed at an earlier period, io not
however, inuch taken notice of before the be-
ginning of the laih century ; and the com«
mou account is, that it was first raised to its
present high privilege with respect to the pro-
secution of crimes, by the stat. 1587, c. 77|
which dechurcs ** Tiiat the thesaurer and ad-
vocate iMirsew slaughters and utheris crimesi
althaucbt the parties be silent, or wald uther-
waycs privily agree." But, that this is dqI
J|uite an accurate stale of the case, may be ia-
erred from a former statute, 1579, c. 78»
which fixes the penalties of calumnious |ife-
seeutioo, and provides particularly ibr the OMS
of process at instance of the lord Adrocale
only. <* And gif the king^ majestie's advoeit
be onlie pursewer, (says the act) his inforaiv
to psythe paine tbrssaki." Andinileed it is
obvious with respect to crimes of « publie
nature, such as treason, sedition, biaaphemy,
and many others, for which no private indi-
vidual ever had right to prosecute, that there
must always have been some reguhur coarse
and method of complaint, wherein Uie offenden
in that sort might be brought to justice. Bui
farther, with respect even lo crimes injarioua le
individnab, if they were ako of an intereeti^
nature to the public, his majesty, in our prae-
tioe and constitution, seems always to have
been esteemed a competent accuser. The
statute 1436, c. 140, has these words for thK
*^ Trespaasours may be accused at the king^
instance allenarly ;' imd it ordains (paneralhr,
** That aU maires and sejjeandes arreut at ae
schiriffis' bidding, albeit that na partie ibl-
k>wer be, all trespassoures, and that the laid
scfairefl'e follow the said trespassonres in the
king's name, gif na partie f<4(ower appeeris.'*
And again, a still more ancient statuu^ 14M»
c. 20, etttitlcd,Of Murebuming,has this ffT|n«Bi
provision, after fixing the penalty of the tra^
pass. '« And gif the lord of the Und iwae
notsik pain, nor punisbis notsik tresnessonwi,
as is bcnir said, the instice-clerk, be the i»-
ditement, saQ gar sik trespassoures he one*
rected befoir the justice, and punished as mui
is." in these words, we have a hint ef the
course in which this sort of business was i
pmpaied, and wiiioh aoesidmg to tlie v
■eneiofoarsliMciofthe tiftecnlfaianl
His Majettie't Advocat replyes. That 1. he
oppons the execution, nor was the kin<; to take
notice of his being prisoner for a cry me, it be-
ing sufficient to the king to consider his dwell-
in<^ house. 2. This reaves in a defence, be-
cause it is ane exception upou the uulitie of
tlie execution, and consequently cannot be
pro|)oned for ane absent. 3. In fortification
of the cxeculioi), offers to prove his familie
lived at Hill a quarter of ane year befor.
The Lords finds that this defence for Gavin
Hamilton, of Hill, resolreing in ane nuUtie of
the execution, and not being ane essonie or ex-
cuse, cannot be receaved unlesse the partie
wcr present.
Intran*
Hohert Trame^ in Lanerk
John Scolt, elder, in Keumuir
John CorsCy in CUdsmilne
James Thompson, ponioner, of Gamqnen
Akrandcr Wur draper y in Shctletoun, portioner
of ^iidlequarter
David Lindcsay, portinnrr of Jacktoun
John Nhnmi, in the Forth
Geonjc Muirhcad, of Steinstoun
Archibald Cieiland^ of Knowenoblehill
James Hamilton, of Halsyd
Jahici liumilton^ of HiovXioAX
J oh A llohnes, of Newtoun
Jlotcrt RussiHy portioner of W indie-edge
Hcnrif Bnsicell, portioner of Dunsystoun
John [T^ar//ro/;er, portioner of Denishill
James Meik, portioner of Fortisset
Archibald Frcntise, in Staioe
James Muirhead, of Breidisholme
Mr. Robert Black, of Silvertounhitl
Indytcd and accused for the crymes of trea-
son and rebellion at lenth mentioued in ther
dittay.
Ptr5faf«r.— Sir George M'Kenzie, of Rose-
haugh, our soveraigne lord's advocat.
Fro^rs in defence, — Sir Geo. Lockhnrt, Mr.
Wm. Fletcher, Mr. William Hamilton^ Mr.
John Kincaid.
Sir George JL)ckhart as procourator for
Breidsholme and the other defemlers craves
they may be putt to a present tryall, and that
his "majestie's advocat may condescend upon
ane informer in regaird that the persuit btnog
for treason the act of parliament is mqst clear
and positive, that whoever accuses any person
as suilty of treason, in cace he succumb in the
probation he is lyable to the paine of treason,
and a commisaion from the counciil or thesau-
rie in gcnerall termes is notsufficient.^
His Majesties Adtocat declaircs James So-
mervaill hade commission from the lords of
the thesawrie to go unto the countrey, and
take information againestthe pennall.
The Lords Justice GeneraH and CommisMSB-
ers of JiMticiariey find that his miyestifls nd-.
^ 9n§h% t» inftsttpaHrill soch ttf the ii&nnnns,
WWMM itMc wiitieifef ooottiaed ta tner ll^tit
ire ftll preiCDU and oompdring.
Irit^ fi'rnh Jusitcc Gencf nil, Justice Clt!rk,and
Co 1 1 ■ rs of J usliciar y, of conienl c^f hU
1 u ;i ; . ivp. \ ^ n n*\ for ^e ^r e rait rit lier causes
ftiiii C'JLJ . -,■■'.■ 1 iV ■• ^ * ,'.ik1
he t!iir j 'S
Vl the sntus jtir»eii i r ^nii, ^«>1iq
Ccireei amt remnant ptiii > nanied, and
ifi?5f*T' r-^- f' r - i-^mgor i.tnt;i».H|4 of i\ny n«we
lei h jii for the eiymes almve spe-
•^ If |,i :;^ ..iie rxpresse v^urraud from the
nils in prtsaitiiSy whcrupuD the de-
iifid tlier pracouj-ators alxivt^-named, ask-
eti and iouk in^trunieaiiq, and pmtested fur ther
cauiioners rtJietT^ aod cra?fd ther Utmds of caa-
tiOTi riii|f!jt be dtly?erctl up, which proteslntion
aiient the cautioneni reliefr, the saiils lords ad-
tnitttd, and herhy adtnitta, ond ordaiues ther
' ' \ cautioners bonds to b<i giveo up.
Kis MajU^ie^'t Advocat Heclairei he BhaU
rtnaiat agiineit any of the dettuders aa to
Um tlMf dyc't 1! deserteil Y ithnuX a apeckU
Fraud from the privie eouuciJi, condescend-
ing^ upon ther tiames, surename^, and de<jijriia<
tioDs, wberupon air Geoj^ Lockbart and Mr.
VViJIiam Fletcbcr, adrooata, asked aod took
iastrumeiita,
^^d'he Lordi contimie the dyetminest James
^^poatyoe, w right ia Luierk, John Robert^
^Ki weaver and portiunert of Hbetleatoutif
Akxander Murray , ot Westouohead, and James
of the iixtecDth century, appears to have lieen
Ihvrn t that alkr iiifonoation had been taken up
in the several counties, aoder tlie hricTe of
dittay in the luaaaer fbnnerly detailed^ the
ju*itice< clerk, at the oommand of the justiciar,
]«iaii«^ up fn>m those materials, what ^as then
caUed the l^ortiious Roll, aad Traistis \ that is a
toU of the names of the delinquents, and a file
^todiotaMnts agouti them, aeoommiidated
!ir wwpcetiye cases. And with the nme
also, to cirpede the ncecsaary pre*
the thai of ttiove eiuurg^B^ and to
Df nis nrflcrs ta tbecrowncrB (for we too had
Ibia effice imneH/ ^uGfh now lon^ liisused)
H^iedermrr-*' •■ -- ' ■ -^ ♦liem in ward,
lurerv frt>ir appeamnce.
^pemrmii » \»hethcrwith
l^llie start yrcs, or the trial
a! crTmf-i , "t illiTt*; *"vt TMin-
t
i-i ue, thul lu train-
► insert the iianrie
•cate, nor of
! such eoo'
■ ' dtfwnio iHt^
y.asappeani
J iiom the *ery
> MockLiizii^ has
tit, 21,
^ othff
Wilfoii, ta Ridj^'ehpad - '^ ^' ' j IT, who are in*
d>ted tor the said il :!t the a<x-otKl
ftiomlay of Jttut ulxi, .ik^i . i uiaiii«s Uie dyel
a^atniTi^t Jaaoes Lot k hart, in Hamilton, caAtd
laird L>Qfkhart, till the Kxt duy of ApryH niict«
and ordaines them to Hntl caution tor thee
appeirance at these dyetSi under the painei
contained in the newe acts of parliamcnL
A DfiSATB,
Sir George Lockhart^ for the pacmalb, aU
leod^cs, that they having- Bdduce«l a great
muny witneases tor proreing of the g'rounda
of ther ejicul|iat<on, and the dyet being i;on-
tinuctl m that the paiinalU moat compeir op
undeiipfne the oertitication of lawe, they ther-
for crave aooordingfto the opinion of lawyers^
and particularli© Matheiis iu his Utte dc 'pro-
baliouu Innocentifi^, ClivruF, Que^t* 53, and
others, that the Hiinesses of ther exculpation
may be examined to lye in * retentis ad futu-
' ram rei memoriam,*
Mr. William Flrtcher crafCB the like for
KnoweohleliJIt and others, as to whotn the
dyet is deserted upon the gToumJs fcirsaid.
The Lorda delay the examination of the wit^
oesaes ol' the cioulpation till tlie dyet of coo-
tiuuation come, and ref U!ke to examine witnasaai
wher llie dyet is ileserltd.
The said day Jatnea Hemple, maltman, iu
Hamilton, gave* in presence of the saiiU Lorda
ane Petition .sig^ned ht' him, Showeing that be
was deephe sensible of his high mislbrlufie in
they had hee^ hronght into court, it waa th#
duty of the lord ndvocale to insist on^n kim.
port, and bring them to an is^ue ;
account, even in 1 he oldest books of ;i u , < ,
he is marked \nihepnrtihu$ as counsH ior tlie
crown (for the Pet^ewar, Advocntui^,) in like
manner as was practised with res(>ect to the
counsel for the accused. In effect, tliereforeg
though not formally stated as snch in the
charge, the lord advocate was prosecutor for
hismajeffty's interest, and was master of the
instanoe, which he mttr^ht deaert, or restriet, of
bring to;in issue, as he saw cause. And thuS|
Xn the wholft 1 think it prohable, tFiat the
rementk>oed act of Jatnea 6| which allows
the lord advocate to pafMii llMNlgll the party
injured be silent, is to bt nodersload of thnf
foroi of pniaecotion only, wherein the imlivt^
dual oaast Uavc insUttd - tirunt^y by summootf
or cr till inal letterst ^ h 'aaio ^ aeon^f
plainer is engroaacd, — tha acoUMl ¥§
a particular day of trial, iiat whether 1 ana
ri|fht in thts conjeoUire or not, certainly dMt
statute must have added la Iba wcigbt mA
consequence of fkm offiadi» who aaw vpvaiM.
sustained the peiaon of hia m^OBty, tmA wtMm
ed the law in this interaatiii^ departiaaiitf It
ia laid aooordin^y , that aoon af tar thii nanod^
ns* iM tha tHal of Amot of WoodmUa, Nov. 3,
t598,iaibefii«ttiiataiioaaf hiibaiag wamktA
in the raoord undertbe lilk of l«Pif A4toail%
wlikh ka has t w mm NtalMa.** !
»n]
33 CHARLES 11. Proceedings againtt the Lanerkahire Men, [27?
having' wandered from the road of his loyaltie ,
and duty towards his soveraigne, in being led -
on to a rebellion agaiueat the king and his
authoritie, and for which he confesses he de-
«erveth the greatest severity the lawes cane
indict upon such ane delinquent, and as he
hath a true sense of his cryiue, so he does in-
genuously declaire howe long he continued in
it, which was from the sabbath night efter
Drumcloge untill that rebellious attactque upon
Glai^owe ; and having that same day returned
to Hamilton he did present his majestie's pro-
clamation, requyreing the rcbeJlsto lay down
tlier armes, and did detaste and abliorrethe
cryme as much as his misiortune, and us to
which he pleads his guilt and not his innoceii-
cie, and throwes himself upon his majestie's
clemency and mercy; and as to his future
cariage, dureing that horrid rebellion, he did
demaine himself peaceablie, and followed his
ordinary busienes, which he is able to makeap-
peir by the most famous and loyall persons
within the toun of 1 lamiltoD, and as to which he
hath cited \\ itnesses, and he is content, as a far-
der proof of his sincoritie anil devot resolutions,
to live loyallie, to take such tests as the lawc
reqnyrs of good, and faithfull subjccttS ; ther-
for crarcing, that if the saids lonis examine
witnesses, they would examine them as to his
guilt eiler the attactque at Glasgowe. The
whiik petition is subscrvbed thus: ** James
SempU."
The said Jamest SempU beiug entered on pan-
nail declaires that the Petition above written,
presented in his name, is subscrybe<1 be him,
and he acknowledges the lybell, and comes in
will, and declaires his sorrowe for his cryme,
and is content to subscry be the declaration and
to take all the tests requyred of the kind's
subjects.
Sic Subscribitury James Sempll.
The Lords continue the dyet agalncst the
said James Sempll till to-morrow.
The said day William VVilkie, commissar of
Lanerk, and Thomas Stodhart, commissar
clerk ther, being oftymes called to have en-
tered and presented David Whitt, smith in
Lanerk, and David Gibson ther, befor the saids
lords this day and place, in the hour of cause
ther, to have underlyen the lawe for ther rysc-
ing and joyning in amies with the rebei'ls in
themonethsof May and June 1679, burning
his majesties laws and acts of parliament at
the marcat croce of Kutiicrglen, orowning out
boncfyres, sett on in commemoration ot his
majesties happie restauration ; resisting, feight-
ing, and opposeing bis majesties forces at
Londoun hill, Glasgowe, and Bothwel-bridge,
and committing the several other acts and deeds
of hye treason and rebellion, at length men-
tion^ in the criminall letters rais^ at his
majesties advocats instance against them, and
aeverall other persons tbereanent, as they who
became cautioners and sovertie acted m the
lipQki ef adjournal, coqjuiictlie and aeYeraUie,
for entering and presenting the nids David
Whytt and David Gibson to the effect fomid
lawfull tyme of day bidden, and thej not en-
tered nor present, and the saids persone nor yet
they compcirand ; the lords justice cleik and
commissioners of justiciary therfor, be the
mouth of John Mckenzie, macer of court, de-
cerned and adjudged the saids William Wilkie
and Thomas Stodhart, cautioners forsaid, to
be in ane imlawe and amerciament of fyve
hundreth racrks for not presenting ilk ane of
the saids David Whitt and David Gibson, and
also decerned and ordained the saids persons to
be outlawes and fugitives frae his Majesties
lawes, and to be putito the home, and alt ther
moveable goods and gear to be escheat and
in brouq;1it, to our sovereign lords nse, for
ther comtemutioTi and disobedience, which was
pronounced lor doom.
Uamilton and Thomson delayed.
The IiOnl.4 Justice Clerk ami Cororoissionen
of Justiciary for several causes moving them,
delay the try all of James Uamilton, of Pryor-
hill, and Johu Thomson, carficntarin Ijauerk,
who are indy ted for being accessorie to tkc kte
rebellion.
The said day anent ane Petition presented to
thcs;uil lords in name and behalf of Alexander
Hroivn, in Lanerk, makcaud mentioiie, that
wher the supplicant being chaleuged for bein^
at Bothwel-oridge, and cited to compeir befor
the snidslonlsin ane court holden at Glasgowe,
in October, 1679, he did compcir personallie,
and entered himself ou pannall, and declaired
he was readie and willin*; to abyd ane legall
tryall, at which tyme the saids lords in re-
spect of his majesties indemnitie, and of ane
declaration under the lord Carawatha hand,
bearing the supplicant to hare taken the bond,
duscrt^ the dyct siinpliciter agaiuest the sun-
plicant, as the act of the said court, under too
hand of the clerk therof. given in with tba
petition, bears ; notwithstanding wherof, the
supplicant in a short tyme therafter was ap-
prehendil be Mr. Wiliiam Ferguson AiUeadgiif
him to be ane heritor) imprisoned, and Ma
goods scazed upon, and disposed of at pleasure;
whcruj>on the supi>licant having made applica-
tion to the counciil, the lords of councill did
recomcnd to the carle of (jlencaime or lord
liosse, or any one of them, to make tryall ef
the supplicants condition, and if he was ant
heritor ; and the lord Ho^so having accordingHa
made tryall, the lords of councill upon his re-
port did grant ordor and warrand to the magis-
trates ot Lanerk to sett the supplicant at
libertie, as the act of councill made therancnt
produced with this petition testifies, yet never-
thelcsse upon some misinformation or ratlMr
mistake, he is yet fardor tn)ubled and con?eiiied
befor the saids"^ lonls upon ane citation at hk
dwelling-house, the supplicant himself bcHtf
absent and abroad, and knoweing nothing «|
the affair, conceaving himself in securitie —
the forsaid act of councill, wliich
upon the lord Rosse his report,
fur ibe saids lonls would be |»leaseil \m talce
tlie premises lo cousidenLtiou, and Ijkways
c<)nKidt;r the c«»ndiii9U ot' the !JU^i|ilic&iit, his
I W^ff and numerous fumilie, who is iiowe tra-
^rgtlin^ tibratid to miike up that losse he liaa
Hhaineij atreadie, and to sutislic his creditorfi,
^^Ibriii he ta «iii much coi^ai^ed, and that he
' can Dot but he uttcrhe ruiued if the dyet he not
^d^erted, or the su{>{>licuiit absrtlfed, ii$ id jus-
■I^Jie ou^hc lo he.
^fplie Li >rd!> Justice Clerk And Commissiooers
^Rusticjury !i ' ' "- peliliun with
the act of c«i' nrnall abcve
ineuiionod, tSit > Mit-i<«»r.n cMu^mLid' his ma-
je^tiei ndvocat excuse the petitioner's absence,
«nd de5ert!itbe dyet siitipiiciter, and dl^ichaigcs
all newe leU^fJi, except be a war rand in j/rc-
fittt
lotmn'
if-
^ohn Witliamwn^ sod l<i Mongo WilUamson,
Itor of tlic htnds nf HoU.
^ohn Wiihmn*f 
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